ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180006148 APPLICANT REQUESTS: personal appearance before the board and reconsideration of his prior request for the following: * removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 October 2012, from his official military personnel file (OMPF), all U.S. Army Human Resources Command (HRC), and U.S. Africa Command (AFRICOM) systems of record and related files * removal of a General Officer Punitive Reprimand, dated 19 October 2012, from his OMPF and all HRC and AFRICOM systems of record and related files * removal of his name as the subject of a Criminal Investigation Command (CID) Report of Investigation (, dated * correction of CID RX to show he was found “not guilty” of the charge of “Abusive Sexual Contact (Adult)” and total expungement of the ROI from the CID systems of record * as a new request, reversal of the Army Grade Determination Review Board (AGDRB) decision that the highest rank/grade he successfully served in was Lieutenant Colonel (LTC)/O-5, and placement in the Retired Reserve in the rank/grade of Colonel (COL)/O-6 vice LTC/O-5 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149, dated 20 March 2018 * self-authored statement, dated 20 March 2018 * Army Review Boards Agency (ARBA) letter, dated 23 May 2018 * self-authored letter, dated 11 June 2018 * DD Form 149 (Application for Correction of Military Record), dated 1 February 2019 * two self-authored statements, dated 1 February 2019 * exhibit list * Bronze Star Medal (BSM) Certificate and Narrative * Combat Action Badge (CAB) orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Southern Price George’s Community Clinic letter, dated 16 June 2016 * VA Form 21-0960P-2 (Mental Disorders (Other than Post-Traumatic Stress Disorder (PTSD) and Eating Disorders) Disability Benefits Questionnaire, dated 17 July 2016 * Wellminds Wellbodies, LLC. psychologist’s letter, dated 21 July 2016 * Social Security Administration (SSA) memorandum, dated 29 July 2016 * Wellminds Wellbodies, LLC. psychologist’s letter, dated 12 August 2016 * Bay Pines VA Healthcare System doctor’s letter, dated 17 November 2016 * VA Readjustment Counseling Service, licensed social worker’s letter, dated 23 January 2017 * Wellminds Wellbodies, LLC. Outpatient Treatment Summary, dated 20 February 2017 * Washington D.C. VA Medical Center, psychiatrist’s letter, undated * SSA Office of the Inspector General (OIG) notice of proposed removal, dated 13 March 2017 * SSA OIG notice of removal decision, dated 12 April 2017 * Psychiatric Treatment Notes including medication list, dated April – May 2017 * VA letter, dated 17 August 2017 * VA Form 21-0960P-3 (Review POTSD Disability Benefits Questionnaire), undated * VA Form 21-0781 (Statement in Support of Claim for service Connection for PTSD), dated 1 March 2018 * U.S. Office of Personnel Management letter, dated 20 March 2018 * VA letter, dated 1 January 2019 * VA letter, dated 15 January 2019 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150018242 on 27 March 2018. 2. The applicant states: a. The AGDRB incorrectly reduced his rank/grade in the Retired Reserve from COL/O-6 to LTC/O-5, however a meaningful appellate brief cannot be submitted on the merits of the case until the ABCMR issues its decision in another case in Docket Number AR20150018242, which he filed in 2015. That 2015 ABCMR application is an appeal of the underlying improper imposition of non-judicial punishment (NJP) under Article 15 of the UCMJ from October 2012, which is what gave rise to the unwarranted referral to the AGDRB in the first place. Obviously, if the ABCMR removes the NJP from his OMPF there will no longer be any basis for an adverse AGDRB decision reducing his retired rank/grade. b. He wants to highlight that there is substantial new evidence that just became available in 2017, which did not even exist in 2015, and thus obviously could not have been considered in mitigation, excuse, or justification by the 2015 AGDRB. There are many new documents, medical opinion letters, and VA decisions which were issued for the first time in 2016 and 2017 and they are highly exculpatory. There are extensive mitigating factors and compassionate circumstances described in the new medical evidence, diagnosis, and treatment records which the 2015 AGDRB never had the opportunity to consider. c. He wants to emphasize the five main “grade determination considerations” listed in Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), paragraph 2-4: * medical reasons, which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance * compassionate circumstances * length of time in grade (TIG) * performance level, as reflected in evaluation reports and other portions of the service record that reflect performance * nature and severity of the misconduct, if any d. The unwarranted 2015 AGDRB decision to downgrade his rank/grade from COL/O-6 to LTC/O-5 constituted a substantial error and injustice because his overall service in the rank/grade of COL/O-6 was certainly far more than merely satisfactory. Indeed, the great weight of the evidence requires mitigation and reversal of the AGDRB case on appeal due to the points of consideration listed in paragraph 2-4, Army Regulation 15-80, expounded upon below: * he has compelling medical and psychological disabilities caused by traumatic Iraq combat stressor incidents and clinically diagnosed as PTSD with a 90 percent service-connected VA disability rating awarded in 2017, which is expected to increase to 100 percent * compassionate circumstances for consideration are extensive combat trauma where he was awarded the CAB and the BSM, child abuse, anxiety, compulsive approval-seeking behavior, PTSD, obsessive-compulsive disorder (OCD) and impulse control disorder (ICD) * he has more than 5 years TIG as a COL/O-6 from September 2009 to October 2014, whereas the applicable Army regulations require only 3 years of satisfactory service to retire as a COL/O-6 * exceptional duty performance in challenging senior leader positions as documented in his Officer Evaluation Reports (OERs) and Defense Meritorious Service Medal (DMSM), which collectively eclipse one brief, minor lapse in judgement during a purely social misunderstanding at Bible study fellowship * the lack of any genuine misconduct, for the same reasons that the ABCMR recently reversed numerous less than honorable discharges in cases where the conduct in question was caused by PTSD, combat trauma, and psychological disability e. His overall service in the rank/grade of COL/O-6 for more than 5 years was certainly satisfactory enough to be placed in the Retired Reserve in his highest grade served. He had more than 5 years TIG as a COL, well beyond the mere 3 years TIG that are required to retire as a COL. His OERs and awards demonstrate his duty performance as a COL was absolutely outstanding. He was promoted to COL on 25 September 2009 and received four OERs as a COL recommending him for promotion to brigadier general (BG) and beyond, including being assessed as potential for “multiple stars” and General Officer command and a recommendation for him to serve as the Commanding General, Military Intelligence Readiness Command and as Deputy Chief of the Army Reserve. f. Regulatory guidance requires retirement grade determination to be based on the Soldier’s overall service in the grade in question and his overall service in the rank/grade of COL/O-6 was certainly far more than satisfactory. To the extent that there was any misconduct at all (which there was not), the allegations were relatively minor in the grand scheme of things, especially given that only “minor offenses” are appropriate for NJP according to Army Regulation 27-10 (Military Justice). The brief social misunderstanding wherein he tried to prevent a Soldier’s suicide one afternoon was greatly outweighed by his exceptional duty performance during the other 1,833 days that he served as a COL between 2009 and 2014. g. Context matters. He was only trying to help by being nice and making supportive conversational gestures, without considering how his well-meaning intentions could be misperceived or exploited. He made an honest mistake in judgment for which he is sorry. At the time, it never occurred to him that the Airman could or would mistake his sincere attempts to make positive comments and show an interest in friendly conversation as anything other than benign. Nothing he said or did can be characterized as hostile, aggressive, or violent in any way. To the contrary, he treated the Airman substantially the same way he did his own daughter when she suffered similar depression as a teen in crisis several years ago, including an attempted suicide. h. The nature of his actions must be considered in context and judged according to his intent, which was purely benevolent. He is truly baffled. During their polite two-way conversation, the Airman conceded to CID that she was smiling, laughing, and temporarily overcoming her depression after looking at photos of his wife and kids, military deployments, and other travels around the world. To say he was utterly shocked and mortified by her complaint to CID is a severe understatement. His medical disability impairs his judgment in social situations at times, so he must have misread her reaction. He now takes psychiatric medication daily that very effectively controls the symptoms of his combat-related mental disorder and PTSD. i. Balance and perspective are required. One minor misunderstanding one afternoon should not be permitted to overshadow more than 5 full years of outstanding duty performance as a COL and 30 years of honorable service as a Soldier who deployed in combat. This simple social misunderstanding should not be permitted to haunt him and his family in retirement for the next 30 or more years of his life as a retiree. Whereas the nature and severity of the incident is low, his duty performance is high, which should outweigh other considerations. j. Per Army Regulation 15-80, paragraph 2-7 it is definitely to the Soldier’s benefit to consider each period of duty separately. Because he served as a COL for more than 5 years, there is more than enough time left over to treat his entire Annual Training (AT) period in Germany as one discrete, severable period of duty and to subtract those couple weeks of duty at AFRICOM from his overall 5 years of TIG as a COL. Even without that period, he still has more than 4 full years of satisfactory service as a COL remaining, and Army Regulation 15-80 only requires 3 years TIG to retire as a COL. k. In this case, the AGDRB should have considered each period of duty separately rather than as one lump-sum period, since it is definitely to his benefit to treat his brief AFRICOM AT period as one severable discrete period and to focus on the rest of his 5-year tenure as a COL during which his duty performance and conduct as an officer was far more than satisfactory and completely without incident. Indeed, he respectfully suggests that his service in the rank/grade of COL/O-6 was superior in every respect during these other periods. l. After a careful balancing of all the mandatory grade determination considerations, it is clear that his overall service in the rank/grade of COL/O-6 was at least satisfactory during the 5 years between September 2009 and October 2014. Those considerations clearly outweigh the nature and severity of the misconduct, which was low, particularly because he committed no actual misconduct or offense. To the contrary, he received NJP unfairly and his file should have never been sent to the AGDRB for consideration at all. Therefore, he respectfully requests the Board to eliminate the error and injustice that is currently reflected in his military records by restoring his retired grade to his highest rank served. m. In response to an ARBA request for medical documents, he enclosed both medical documents and employment records (enumerated on his exhibit list) to document the severity of his mental disabilities and psychological disorders as clinically diagnosed by multiple doctors, psychiatrists, and psychologists. He has been diagnosed with and treated by VA medical providers for the following mental illnesses: * PTSD, from extensive combat trauma in Iraq * ICD, which deprives him of control over irresistible impulses * OCD, which produces uncontrollable behaviors * bipolar disorder, which results in manic conduct that is socially unacceptable n. Obviously, it is not fair, just, or equitable to punish a Soldier for a mental illness, psychiatric disorder, or medical disability, particularly for combat-related PTSD. The VA medical experts who specialize in psychiatry and psychology and treat PTSD every day have concluded he suffers from a mental illness and he has numerous clinically diagnosed psychological disorders for which he takes prescribed psychiatric medication. It has also been determined repeatedly by the experts that his psychological disabilities have caused the conduct for which he received NJP under Article 15 of the UCMJ. o. It is axiomatic that no person should be punished for a mental disability or psychiatric disorder. The ABCMR has repeatedly granted relief to Soldiers who engaged in misconduct that was caused by clinically diagnosed alcoholism, drug addiction, substance abuse problems, PTSD, mental illness, or other medical problems. In fact, the ABCMR was specifically tasked to review Soldier discharge cases to make sure no Soldier was unfairly punished or discharge under less than honorable conditions based on conduct that was caused by PTSD. p. For the same reasons, he should not be unfairly punished via NJP or an AGDRB grade reduction in retirement for conduct that was expressly caused by PTSD and other clinically diagnosed mental illnesses. In addition to those basic, common-sense principles of equity, justice, and fairness, Army Regulation 15-80 specifically emphasized two key points regarding medical reasons and compassionate circumstances, both of which are crucial determining factors in his case. q. His case file with the ABCMR now contains a mountain of evidence that shows the alleged misconduct that resulted in the NJP was caused by his mental impairment and psychological disabilities. The symptoms of his psychiatric disorders include the precise behaviors that resulted in the NJP misconduct of “assault consummated by battery” and “conduct unbecoming.” Touching an Airman on the arm during casual conversation in public, in and around the Chaplain’s Club, constituted an attempt to gain female approval as part of a pattern of obsessive-compulsive attention-seeking behavior including socially inappropriate comments and impulse control symptoms. All of that transpired while he was simultaneously attempting to prevent a military suicide by a troubled teen, the Airman and he had nothing but benevolent intentions. r. While he was trying to console an Airman suffering from depression, anxiety, and her own mental issues, he failed to recognize that his own obsessive-compulsive, and impulsive attempts to gain her attention and win her approval were socially inappropriate at the time or may have made her feel awkward and uncomfortable. It took him months of psychotherapy and introspection to understand the effects and manifestations of his mental disorders. s. Expert after expert, including both medical doctors, psychologists, psychiatrists, authorities at the SSA, medical specialists at the Office of Personnel Management, and hearing officials at the Maryland Unemployment Appeals Division, all unanimously agree his conduct was caused by and was merely a symptom of his medical disability and mental illnesses, to include PTSD, OCD, ICD, and bipolar disorder. He has included letters and statements from these medical professionals attesting to the same. His symptoms of the psychological conditions are now well controlled by psychiatric medications taken daily. t. If there is one thing that is clear and consistent from all of the medical experts, officials, authorities, and decision-makers attached as exhibits to this case, it is that the conduct that resulted in NJP and the subsequent AGDRB decision to downgrade his retired grade was caused by his mental illness, psychiatric disability, and what Army Regulation 15-80, paragraph 2-4 refers to as “medical reasons.” All of the attached documentation points to “medical reasons” stemming from his Iraq combat service, service-connected disability, and psychological disorder as the underlying cause for his alleged misconduct. His mental conditions blind him to his behavior, of which he is not even aware, so it is patently unfair to punish him for having a medical disability or mental illness. It is difficult to imagine a more unfair AGDRB outcome than punishing a good Soldier with a strong record of outstanding duty performance by reducing his rank in retirement after 30 years of service because he developed PTSD and other mental disorders from combat trauma in Iraq. u. There had been several social occasions with friends over the years where his wife mentioned he was being inappropriate or getting too close to females. However, he never understood that these uncontrollable impulses to gain female attention and approval were manifestations of a mental illness, child abuse, or the combat trauma he experienced in Iraq. It was not until many years later that his wife pleaded for him to seek mental help and treatment for his impulsive and compulsive behaviors associated with PTSD and other psychological disorders. It was not until that time, in 2016 and beyond, that he was formally diagnosed with PTSD, OCD, ICD, and bipolar disorder as war-related psychiatric disabilities. It took months of intensive psychotherapy to discover that underlying child abuse traumas were exacerbated by combat trauma in Iraq and that the combination of these events and mental impairments caused the inappropriate manifestations of these psychiatric disorders in the workplace, both military and civilian. v. Army Regulation 15-80, paragraph 2-4 mandates the AGDRB consider “medical reasons” as a significant mitigating factor for the alleged misconduct. However, when the AGDRB convened in 2015, the medical diagnosis and treatment records did not yet exist. He was not diagnosed with PTSD or any psychological conditions until 2016 and 2017 and there is no way to transport back in time with these new medical records, thus his request for the ABCMR to overturn the AGDRB decision. w. The second major conclusion that should be readily apparent from the attached records is that there are very compelling “compassionate circumstances” that exist in this case which the AGDRB did not have a meaningful opportunity to consider as mandated by Army Regulation 15-80, paragraph 2-4. Most obviously, he is being punished for the symptoms of PTSD that resulted from volunteering to deploy to combat in Iraq as a service to our country. Although he was unaware that he was suffering from PTSD and other mental illnesses when he submitted his written materials to the AGDRB in 2015, the subsequent facts and medical records document that the 2012 behavior resulting in his NJP was caused by his Iraq deployment. For Soldiers who deploy to combat and suffer from PTSD, the highest degree of compassion is warranted. x. In addition, since 2015 there are other new “compassionate circumstances” that did not exist at the time the AGDRB convened. For instance, he was fired from his Federal civilian job as an attorney in 2017 due to the same psychological disorders caused by his Iraq deployment and PTSD. At this point, his unemployment benefits have run out and he is effectively unemployable. The psychological effects of war have destroyed both his military and civilian careers. y. Furthermore, his family life has suffered tremendously due to his forced retirement from the Army in disgrace and his being fired from his civilian job as an attorney, all caused by the PTSD and mental illness resulting from combat trauma. Unemployed and unemployable due to the stain of NJP on his military service record, he suffered a loss of prestige, reputation, and standing in the community. He lost many friends and his children have lost respect for him, becoming alienated and distant. His wife volunteered for a nearly 3-year active duty mobilization overseas, resulting in a long geographic separation and loss of consortium and affection from his wife, which has harmed his marriage and further damaged his mental health. z. After 30 years of honorable service to our nation, including battalion command, deployment to Iraq, war College, nine rows of ribbons, and OERs recommending him for promotion to BG and beyond, he was forced into retirement under a cloud, drummed out in disgrace. There was no retirement ceremony, no award in retirement, and no celebration. He was just forced out of the Army he loved and served from 1985 to 2014, rising from Infantry private to COL. Then to add insult to injury, he was demoted in retirement to LTC/O-5, essentially punished for having a mental disability caused by Iraq trauma and child abuse. The element of child abuse exacerbated by combat trauma adds yet another compassionate circumstance to the equation. The AGDRB decision to reduce his grade in retirement is disturbing in its lack of compassion. We live in a nation that should teat its combat veterans better than that, even if they suffer from PTSD that causes them to behave inappropriately in rare social circumstances. aa. The ABCMR now has the opportunity to right this wrong in a way that the AGDRB could not before the medical diagnosis and treatment came to light in 2016 and 2017. There are certainly extensive mitigating compassionate circumstances which the ABCMR is legally required to take into account as it decides whether to overturn the AGDRB decision. The new medical evidence, which shows the underlying cause of the misconduct in 2012 was PTSD and other mental illnesses, renders the 2015 AGDRB decision unfair, unjust, and inequitable with the benefit of hindsight. The psychological disorders present substantial new evidence in mitigation. Just as the ABCMR has been charged to review the impact of PTSD on misconduct that resulted in less than honorable discharges, the Board should now equally consider the impact of PTSD that resulted in NJP and reverse the unfair reduction in retired grade resulting therefrom. bb. The new medical evidence in his case is highly exculpatory. He has an impulse control problem, obsessive thoughts, and uncontrollable behaviors that are both impulsive and compulsive. He does not even know about his inappropriate conduct when he is not on psychiatric medication. He has no knowledge of or control over these behaviors unless he takes his medication. As a matter of basic human compassion, the ABCMR should not allow him to be punished for having a mental disability. cc. His TIG and performance level speak to his deserved retirement in the rank/grade of COL/O-6. Despite his mental disability and psychiatric conditions, he served a full 5 years’ TIG as an O-6 and his service was far more than satisfactory. His OERs as a COL all recommended him for promotion to BG and beyond and his raters and senior raters repeatedly labeled him a superstar, outstanding, exceptional, and brilliant. Not to be immodest, but his performance level in challenging billets was certainly more than merely satisfactory. The DMSM he received is a very high level award that reflects a very high performance level as does the BSM he received. His last command recommended him for a Legion of Merit, but it was rejected due to the unfair NJP in his file. dd. In reality, there was no misconduct at all in his case. Case law makes it very clear that conduct caused by a mental illness or psychological disability is not misconduct. Actions resulting from a medical disability are no more misconduct than a person suffering from Tourette’s syndrome yelling out curse words in public is misconduct. A clinically diagnosed medical condition is a legitimate excuse in mitigation for behavior that might otherwise constitute misconduct, but for the medical disability. As the Maryland Unemployment hearing examiner put it with regard to his loss of civilian employment, “there was no evidence presented that the claimant was discharged for any misconduct on his part; only conduct resulting from his medical disability.” ee. If there was any misconduct, it was not severe. It was nothing more than touching an Airman on the arm during informal conversation in and around a Chaplain’s Club and this behavior was caused by OCD and ICD to garner female approval and attention, resulting from PTSD caused by child abuse and combat trauma. If the charges had been severe (murder, rape, arson, etc.) there would have been a court-martial and not mere administrative NJP. In actuality there was no misconduct at all in this case, just a mental illness which caused socially inappropriate comments and attention-seeking behavior while trying to help an Airman. ff. After a careful balancing of all the mandatory grade determination considerations mandated by Army Regulation 15-80, it is clear that his overall service in the grade of O-6 was at least satisfactory and he should retain his highest grade served in retirement gg. Multiple medical providers diagnosed and treated him for the following mental illnesses, brain dysfunction, and psychiatric disorders: * PTSD, resulting from extensive fatal and near-fatal enemy combat attacks and related traumas in Iraq from 2007 to 2008 * OCD, which causes socially inappropriate thoughts, comments, and uncontrollable behaviors * ICD, which deprives him of control over irresistible impulses and produces unacceptable behaviors in the workplace * bipolar disorder, which results in manic conduct that is socially unacceptable in a professional setting * war-related traumatic brain injury (TBI), which contributes to the other mental disabilities and psychological disorders in an unpredictable manner hh. This new and material medical evidence mitigates his purported misconduct and speaks to not only the need for the reversal of his retirement grade determination, but also to the removal of the underlying NJP and General Officer Punitive Reprimand from his OMPF. Both are inappropriate and never should have been issued because the 2012 conduct in question was the direct result of severe mental illnesses, including multiple combat-related psychological disorders dating from 2008, which were not diagnosed or treated by VA doctors until 2016. ii. According to a VA psychologist, the combination of his severe mental disorders was the cause of certain uncharacteristic and inappropriate behavior that might otherwise be considered misconduct, but for the severe psychological impairment and mental disabilities that went undiagnosed and untreated at the time of the conduct that led to the discipline. He is therefore requesting reconsideration of his previously denied ABCMR application to correct his unfair and unjust military records as well as requesting appeal of the ADRB determination with regard to his retired rank. 3. The applicant was appointed as a Reserve commissioned officer of the Army on 17 May 1987 and served in various active and inactive capacities within the Army National Guard and U.S. Army Reserve (USAR). 4. He provided a BSM certificate which shows he was awarded the BSM for exceptionally meritorious service in a combat zone with exposure to risk of hostile action during Operation Iraqi Freedom from 17 November 2007 to 13 May 2008. 5. Joint Area Support Group – Central (Provisional) Permanent Order 212-002, dated 30 July 2008, show he was awarded the Combat Action Badge for actively engaging or being engaged by the enemy on 27 March 2008. 6. With his prior application, the applicant provided a copy of DA Form 67-9 (OER) covering the 5-month period from 17 November 2007 through 19 April 2008. Among his Rater’s comments were that the applicant should be selected for promotion to O-6 ahead of his peers and he was clearly on track to become a general officer. Among his Senior Rater comments were that he was a superstar with absolutely unlimited potential and had all the makings of a future general officer. 7. He was promoted to the rank/grade of COL/O-6 on 25 September 2009. 8. He provided copies of three further OERs, one covering the 10-month period from 18 May 2009 through 7 April 2010, one covering the 3-month period from 8 April 2010 through 8 July 2010 and an OER covering the 1-month period 14 April 2012 through 14 May 2012. a. Among his Rater’s comments on the April 2010 OER are that the applicant should be promoted to BG at the very first opportunity and is an ideal candidate for joint or interagency assignments in the Pentagon or a Joint Task Force. Among his Senior Rater’s comments are that the applicant demonstrated great potential and should be promoted to BG and beyond. b. Among his Rater’s comments on the July 2010 OER are that the applicant should be selected for USAR brigade command immediately, and that he was a top performer with unlimited potential for service as a USAR general officer. Among his Senior Rater comments are that the applicant had general officer potential and could serve at the highest levels of our National Intelligence Community. c. Among his Rater’s comments on the May 2012 OER are that the applicant had unlimited potential for promotion to O-7 and beyond and should definitely be selected for BG and command ahead of his USAR peers. Among his Senior Rater’s comments are that the applicant’s performance was truly superior to his USAR peers and that he was ready for promotion and any general officer command. 9. A DMSM Certificate, dated 14 May 2012, shows the applicant was awarded the DMSM on the date of the certificate for exceptionally meritorious service for the Armed Forces of the United States from 1 July 2009 through 14 May 2012. 10. U.S. Army HRC Orders A-08-215648, dated 29 August 2012, ordered him to active duty for operational support with AFRICOM with duty in Stuttgart, Germany effective 4 September 2012 for a period of 21 days. 11. CID Form 94 (Agent’s Investigation Report), dated 18 September 2012, shows on 12 September 2012, Investigator ____ ____, Security Forces Military Police Investigator, Ramstein Air Force Base notified the CID office that Airman First Class ____ ____ provided a sworn statement on 12 September 2012, wherein she stated: * an unknown U.S. Army COL in uniform (later determined to be the applicant) groped her legs, arms, and thigh while at the Club 7 Café on Ramstein Air Force Base on 11 September 2012 * Airman First Class ____ accompanied the COL outside to his vehicle where he showed her a shirtless picture of himself, touched her face, put his arm around her, hugged her, and kissed her cheek 12. Among the documents accompanying the CID Form 94 are the following (all available for Board review): * a 7-page Statement of Suspect/Witness /Complainant written by Airman First Class ____, detailing the events that transpired at the Club 7 * DA Form 3881 (Rights Warning Procedure/Waiver Certificate) signed by the applicant * DA Forms 4137 (Evidence/Property Custody Document) detailing collected evidence, including the applicant’s cell phone * A photograph of Airman First Class____, labeled “Photo 1” * a shirtless photograph of the applicant, purportedly the photograph he showed Airman First Class ____, labeled “Photo 2” 13. A DA Form 2627 shows he accepted NJP imposed by Major General (MG) ____ ____ on 13 October 2012, for the following misconduct: * assaulting Airman First Class ____ ____, U.S. Air Force (USAF), at Ramstein Air Base, Germany on 11 September 2012, by repeatedly touching her on her stomach, legs, arm, and back, cupping her face and pulling it toward him, and hugging and kissing her on the cheek * while wearing his uniform, going to “Club 7,” a location in which junior enlisted personnel were present, on 11 September 2012, and repeatedly touching Airman First Class ____ ____, who he knew was a USAF E-3, and telling her how beautiful, smart and skinny she was * asking Airman First Class ____ to accompany him to his car on 11 September 2012, where he showed her a shirtless picture of himself and hugged and kissed her on the cheek * he was found not guilty of engaging in sexual contact with Airman First Class ____ by placing his hand on her upper thigh and placing his arm around her shoulder, causing bodily harm to her on 11September 2012 14. The applicant did not demand trial by court-martial, but he did submit matters in defense, extenuation, and or mitigation. On 15 October 2012, the applicant submitted a memorandum appealing the imposition of the NJP, stating in pertinent part: a. If the NJP under Article 15 of the UCMJ is not wholly set aside on appeal, the result will not only be a grave hardship to both his military and civilian careers, but also a substantial error and injustice because no UCMJ offense was committed, let alone proven beyond a reasonable doubt. The inconsistencies in the evidence raise considerable doubts, which require guilty determinations to be wholly set aside as a matter of law. b. The Article 15 findings of guilt will destroy his life, end his military career, and ruin his civilian career and devastate his family financially. This will likely result in the loss of his security clearance, his disbarment as a lawyer, and a ban on all future employment with the Federal Government in any capacity. Without a Top Secret security clearance, he will lose his qualification to serve as a Military Intelligence officer, which has been his Army career field for the past 25 years and he will lose his current GS-15 Federal civilian job in the Inspector General community. Without a license to practice law, he will not only lose his current job as a supervisory attorney in the Federal Government, but also his ability to function as a lawyer in private practice in the future, as he will likely be debarred. In sum, if the NJP is not wholly set aside on appeal, it will render him both unemployed and effectively unemployable. c. Considering the actual facts, the punishment is grossly disproportionate, particularly since there was never a UCMJ violation in the first place. This matter was overcharged. His appeal is far more than a simple plea for a modicum of human compassion. There has been a substantial injustice in this case. He is not guilty of any criminal offense and there is not sufficient evidence to prove his guilt beyond a reasonable doubt. d. For 28 years he served as a Reservist and never served as an active component officer in the Regular Army. As such, he did not even know Chaplain’s clubs existed until the month prior, when he happened upon one on his way home from the gym. Hence, he was not aware of the apparent reputation of such religious clubs as being intended for junior enlisted only until MG ___ questioned him so harshly as to why he would walk into the club in the first place, whether he felt uncomfortable around the young people there, and why he did not turn around and walk right out. e. He literally had no idea what it was and was led to believe it was merely a safe place for people of all ages and ranks to interact socially without rank as equals and followed the common practice there to use first names only. To him the religious fellowship club was a little island outside of the military and he acted not as an O-6, but as a human being engaging in friendly conversation with all those present. Context matters and he never understood the context from an active component officer’s perspective and clearly never formed the intent to violate the UCMJ. f. There were substantial legal defects to his findings of guilt. Most significantly, there is literally no evidence in the record the Airman ever let him know that anything he was saying or doing was not consensual, and it was the Government’s affirmative legal obligation to provide sufficient evidence to prove beyond a reasonable doubt that she provided him with notice that any contact was not consensual. Nothing in any of the evidence suggests that his mere presence in the Chaplain’s club or their brief conversational contact involved any element of “dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty” or was “seriously morally unfitting” as required for a finding of guilty of the offense of conduct unbecoming an officer and a gentleman. As most, he is guilty of behavior that is merely inappropriate or in bad taste, which are expressly enumerated defenses to a guilty finding. g. In short, nothing he is accused of remotely rises to the level of a criminal offense, yet the Article 15 outcome threatens to utterly decimate his life and his children’s future. The conduct alleged does not constitute a violation of the UCMJ and certainly does not merit a course of action that would permanently destroy both his military and civilian careers. h. MG ___ relied too heavily on an inaccurate, self-contradictory statement submitted by an immature, troubled teenager who admitted that long before she had ever even met him she had serious emotional insecurity and stress issues caused by life in the barracks and pressure from her chain of command. Indeed, her low self-esteem and emotional issues are the primary reason that he engaged her directly in the first place, in a good faith effort to bolster her spirits and improve her feeling of self-worth. MG ___ barely even mentioned the Airman’s statement and interrupted him throughout the proceedings, never giving him an opportunity to explain beyond yes or no answers. As a lawyer, it truly shocks the conscience that MG H____ clearly pre-determined the guilty outcome before the proceedings even began. For these reasons, the guilty findings imposed by MG ____ need to be wholly set aside. 15. A memorandum from the AFRICOM, Army Element Service Commander, MG ___ ____, dated 19 October 2012, shows the applicant was punitively reprimanded for assaulting a junior enlisted female service member and for conduct unbecoming an officer and a gentleman. His actions demonstrated that although he was charged with mentoring junior Soldiers and maintaining good order and discipline, he selfishly chose to act in a way that undermined those important goals. This memorandum was filed in the applicant’s OMPF. 16. Along with his personal statement, the applicant submitted with his appeal a statement of facts, numerous letters of support, and a memorandum composed by Senior Defense Counsel on his behalf, all of which were considered upon appeal. a. On 25 October 2012, the reviewing Judge Advocate determined the proceedings were conducted in accordance with law and regulation and punishment imposed was not unjust nor disproportionate to the offense committed. b. On 29 October 2012, after consideration of all matters presented in the appeal, the appeal was denied and the original DA Form 2627 was filed in the performance section of his OMPF. 17. A DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was honorably released from active duty on 24 October 2012, after 1 month and 21 days of net active service due to the completion of required active service. 18. CID ROI 0108-2012-CID667-7XXXX-6CX, dated 6 November 2012, shows the investigation established probable cause to believe the applicant committed the offense of Abusive Sexual Contact when he kissed Airman ____ on the cheek and touched her body in a sexual manner without her consent. 19. He provided an OER covering the period 10 March 2014 through 21 March 2014, where he served as a Support Operations Officer for the U.S. Army War College Senior Leader Seminar, Phase II. Among his Rater comments were that the applicant should be promoted to BG immediately and selected for command. Among his Senior Rater comments were that the applicant should be promoted to BG and beyond and that he will make a tremendous contribution to the Army for years to come. 20. HRC Orders C-04-405375,dated 21 April 2014, released the applicant from the USAR Control Group (Reinforcement) and transferred him to the Retired Reserve effective 1 October 2014 due to the completion of 20 or more years Reserve duty. 21. An undated memorandum from HRC to the Deputy Assistant Secretary of the Army (Review Boards) requested a grade determination on the applicant in accordance with Army Regulation 15-80, to determine the final grade that would affect his individual separation or retired pay. The applicant’s OMPF indicated NJP under Article 15 of the UCMJ in October 2012 for misconduct and a General Officer Memorandum of Reprimand, also dated October 2012. The applicant requested transfer to the Retired Reserve effective 1 October 2014. 22. On 16 December 2014, the AGDRB informed the applicant via memorandum that his OMPF contained derogatory information during his service in the grade he held before his placement in the Retired Reserve. Under the provisions of Army Regulation 15-80, this information rendered him subject to a determination concerning the highest grade he served satisfactorily for the purpose of retired pay when he becomes eligible to receive non-regular retired pay. He was advised he could not appear before the AGDRB, but could submit any written materials he wished the AGDRB to consider. 23. In response, the applicant provided the following to the AGDRB for review (all of which is available for the Board to review): * a 17-page letter detailing how his 5 years of service as a COL/O-6 was well beyond satisfactory, including Army Regulation 15-80, paragraph 2-4 considerations * numerous OERs * numerous personal photographs of himself, his family, and vacations, to include the shirtless photo he purported showed Airman First Class C____ * numerous award certificates, award citations, and award orders spanning his Army career * DD Form 214 * 3-page resume * 10-page military biographical summary * NJP appeal documents * numerous letters of support 24. On 6 March 2015, the AGDRB reviewed the voluntary retirement submitted by the applicant and the request for a grade determination submitted by HRC. It was subsequently directed that the applicant be placed on the Reserve Retired List in the rank/grade of LTC/O-5. It was determined his service in the rank/grade of COL/O-6 was not satisfactory. 25. On 28 October 2015, the applicant applied to the ABCMR requesting the following: * removal of a DA Form 2627, dated 13 October 2012, from his OMPF and all HRC and AFRICOM systems of record and related files * removal of a General Officer Punitive Reprimand, dated 19 October 2012, from his OMPF and all HRC and AFRICOM systems of record and related files * removal of his name as the subject of a Criminal Investigation Command (CID) Report of Investigation (ROI) 0108-2012-CID667-7XXXX-6CX, dated 6 November 2012 * correction of CID ROI 0108-2012-CID667-7XXXX-6CX to show he was found “not guilty” of the charge of “Abusive Sexual Contact (Adult)” and total expungement of the ROI from the CID systems of record 26. The Board considered his application in ABCMR Record of Proceedings AR20150015242 on 27 March 2018, and determined the evidence presented did not demonstrate the existence of a probable error or injustice, denying his application. 27. With his current request, the applicant provided numerous medical letters dated between 2016 and 2017, which were not previously available and are summarized in pertinent part below: a. A VA Southern Price George’s Community Clinic letter, dated 16 June 2016, states the applicant was referred for enrollment in the VA War Related Illness and Injury Study Center and has attended a number of VA screening evaluations for PTSD and TBI relating to combat incidents in Iraq. He requested this medical letter as documentation in support of his request to his Federal agency employer for a reasonable accommodation to work at home by medical exception to facilitate medical treatment which includes psychological counseling for his documented psychiatric disorders of PTSD unspecified ICD, unspecified trauma and stress related disorder, and OCD with fair or good insight. His psychiatric conditions significantly affected his socio-occupational functioning and the patient reported being unable to perform his job related activities in a professional environment without potentially engaging in socially inappropriate behavior and comments triggered by stress in the work place on an unpredictable and intermittent basis. He would benefit from cognitive behavioral therapy and medication for his psychiatric disorders. b. VA Form 21-0960P-2 (Mental Disorders (Other than Post-Traumatic Stress Disorder (PTSD) and Eating Disorders) Disability Benefits Questionnaire, dated 17 July 2016, shows he was diagnosed with OCD, ICD, PTSD, anxiety, frotteurism (interest in rubbing one’s pelvic area or erect penis against a non-consenting person for sexual pleasure), anti-social, maladaptive OD, fear, reckless and self-destructive behavior. TBI from combat-related concussions and blasts in Iraq is indicated and a Magnetic Resonance Image of the brain was ordered. He had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. His history shows he was divorced three times during his military service and was at risk of a fourth divorce. He was fired from several jobs during and after military service and was under investigation for inappropriate sexual comments in the workplace and facing Federal civilian discipline or removal. c. A Wellminds Wellbodies, LLC. psychologist’s letter, dated 21 July 2016, states the applicant’s VA documentation shows he claimed numerous combat stressor incidents in Iraq. He has undergone numerous counseling sessions for diagnosis and treatment of PTSD, OCD, and ICD. It is the psychologist’s professional opinion that the applicant required work at home by medical exception for an initial period of 1 year to facilitate his treatment, including two weekly sessions of psychotherapy related to his psychiatric disorders and psychiatric disability. His current mental impairment related to a diagnosis of combat-related PTSD, OCD, and ICD, including certain obsessive thoughts, intrusive images, compulsive behaviors, and impulses. Manifest symptoms include infrequent socially inappropriate comments and behaviors aimed at seeking approval and attention from females. d. An unsigned SSA memorandum, dated 29 July 2016, from the SSA medical officer to OIG Human Resources office states the medical information provided does not support the request for work at home by medical exception, however he could consider telework as a reasonable accommodation for the applicant. The submitted information indicated the applicant was receiving treatment for a traumatic injury and several post-traumatic reactions. Based on his analysis the documentation was sufficient to establish the applicant was an individual with a disability with substantial limitation in the major life activities of thinking and concentration. e. A Wellminds Wellbodies, LLC. psychologist’s letter, dated 12 August 2016, states the applicant was clinically diagnose with emotional disabilities and was referred to the psychologist for psychological counseling and treatment for military service-connected psychiatric conditions related to combat in Iraq. As such, he had been treating him with twice-weekly intensive psychotherapy for PTSD, OCD, and ICD. These disorders resulted in his previous socially inappropriate comments and approval-seeking from females in the workplace. f. A Bay Pines VA Healthcare System doctor’s letter, dated 17 November 2016, states the applicant was seen at the Naples VA outpatient clinic on the date of the letter for psychotherapy. He was treated for stress from the workplace, family issues, his mother’s upcoming surgery, separation from his wife due to her active duty deployment to a foreign country, his potential loss of employment and security clearance, difficulty sleeping, headaches, panic attacks, and other symptoms of PTSD. He recommended the applicant be permitted to continue to telework from Naples for medical reasons for the next 30 days and that he be approved liberal sick leave for the next few weeks. g. A VA Readjustment Counseling Service, licensed social worker’s letter, dated 23 January 2017, states the applicant contacted their office on 18 January 2017 in severe distress over being served with a termination of employment notice by law enforcement officers at his home earlier that day. He has a well-documented history of PTSD, OCD, ICD and has been receiving medication from a VA psychiatrist at the Washington DC VA Medical Center and psychotherapy from a civilian psychologist in private practice. It was his professional opinion that the applicant should be referred to residential treatment of his PTSD and be granted 30 days of sick leave to accommodate him during his period of crisis. h. A Wellminds Wellbodies, LLC. Outpatient Treatment Summary, dated 20 February 2017, states the applicant has been seen in outpatient psychotherapy with a clinical psychologist and certified sex therapist since 23 June 2016, after his referral by the VA. The applicant has a complex trauma history which includes emotional and physical abuse from toddlerhood through high school and multiple war traumas from extensive combat in Iraq which aggravated other underlying dormant psychological issues from childhood. He was diagnosed with PTSD, OCD, ICD, bipolar disorder, TBI, sleep apnea, asthma, tinnitus, childhood trauma aggravated by Iraq trauma and combat stressor incidents and presented with symptoms typical to his clinical diagnoses. His psychiatric disorders interact in a complex manner to produce unacceptable difficulties with attempting to perform the interpersonal interaction and personal contact duties required by his position description as an attorney with the Federal Government. i. An undated Washington D.C. VA Medical Center, psychiatrist’s letter, states with regard to medical documentation in support of reasonable accommodation for mental disability, the applicant has been treated by several VA psychologists and psychiatrists in the past year for combat-related PTSD, OCD, and ICD. His mental disabilities were caused by extensive combat stressors and trauma in Iraq. His clinically diagnosed mental disability substantially limits major life activities, with socio-economic impairment and workplace behaviors that have obviously negatively impacted his current employment status. In his professional opinion, the applicant would benefit from the support and assistance of his wife as part of his treatment for PTSD and related disabling medical conditions. Therefore, he seeks a flexible situational telework agreement to allow him to work from Florida and/or Germany for blocks of time, while his wife is on mobilization orders for overseas contingency operations in Stuttgart, Germany. 28. A letter from the SSA, OIG letter dated 13 March 2017, provided the applicant official notice of their proposal to remove the applicant from his position as the Senior Attorney in the Office of the Counsel to the OIG, SSA due to his inability to perform the critical functions of his position description and his inability to maintain full and regular attendance due to his documented disabilities. 29. A subsequent letter from the SSA, OIG, dated 12 April 2017, notified the applicant he was found medically unable to maintain full and regular attendance and it was therefore decided to remove him from the SSA and Federal service effective 30 September 2017. The symptoms of his psychiatric disorders include infrequent socially inappropriate comments, attention-seeking behaviors, and general approval-seeking from female employees in the workplace. Although he provided medical documentation that his combat-related disabilities are the underlying cause of his conduct, such behavior is intolerable in the Federal workplace. 30. The applicant provided a list of medications he was prescribed between April 2017 and June 2017, which includes medication for breathing, cholesterol, headache, and OCD. 31. A letter from the VA, dated 17 August 2017, shows the applicant was receiving service-connected disability compensation at a combined evaluation rate of 90 percent. 32. An undated VA Form 21-0960P-3, shows the applicant has the diagnoses of PTSD, OCD, ICD, TBI, sleep apnea, asthma, and tinnitus. 33. A VA Form 21-0781, dated 1 March 2018, shows the applicant made statements in support of his claim for service connection for PTSD, detailing twelve stressful incidents in Iraq from 7 November 2007 through 7 June 2008. 34. A letter from the U.S. Office of Personnel Management, dated 20 March 2018, informed the applicant that in reviewing his disability application, they found him to be disabled from his position as a senior attorney due to bipolar disorder and that his application for disability retirement under the Federal Employees Retirement System had been approved. 35. VA letters, dated 1 January 2019 and 15 January 2019, both show the applicant’s combined service-connected evaluation is 100 percent and that he is considered to be totally and permanently disabled due solely to his service-connected disabilities. The letters do not detail what his service-connected disabilities are. 36. On 7 May 2019, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion, which states in pertinent part: a. The applicant’s electronic military medical record spanning the time from 16 April 2007 through 24 April 2012 was reviewed. On 5 February 2009, the applicant presented to Behavioral Health as a self-referral, so that he could work on his behavior, conduct, and attitude toward relationships. He stated he has had a chronic, significant pattern of maladaptive relationships he would like to improve (with woman whom he has dated, female supervisors, spouses, and his children). He indicated his problems have lasted for decades with an intensification of distress in 2006 when he lost his civilian job as an attorney for inappropriate sexual relations with clients and co-workers. He has continued to engage in multiple sexual relationships with women for the duration of his three marriages; he denied a history of legal involvement but mentioned he has faced disciplinary action within three work settings and subsequently lost those jobs due to inappropriate sexual relations. He indicated he participated in 20-30 psychotherapy sessions with a social worker between 2007 and 2008 to work on these relationship issues. He denied psychiatric hospitalization or a history of taking psychotropic medications. He was diagnosed with ICD not otherwise specified and referred to the Tricare network for specialized treatment of his impulsive sexual behaviors. It is not clear from the annotations in his electronic medical record if he ever followed through on this recommendation. b. The applicant’s electronic military medical record shows he subsequently presented to Urology requesting a prescription of Levitra to enhance his sexual function. After consulting with behavioral Health, the urologist decided to not prescribe a drug to enhance sexual performance given the applicant’s diagnosis of ICD, not otherwise specified. On 22 July 2009, the following summarized note was entered into AHLTA by his behavioral health provider: Received call from urologist that patient had presented in office, demanding to be seen. The urologist inquired as to behavioral health’s opinion as to whether the patient should be given a refill of Levitra to enhance sexual function. She reiterated that at the time of intake in the behavioral health department, the patient had endorsed numerous problematic behaviors related to impulsive sexual encounters and that was why he was seeking clinical/behavioral intervention. The urologist indicated she would see the patient. The behavioral health provider received numerous emails from the patient soon after the phone call with the urologist through which he expressed his frustration that the Levitra refill was not authorized. The patient wanted to know the official opinion of the behavioral health department regarding the refill, to which she replied they have no official position over medical refills, but that based on the problems he presented with, a medication that enhanced and would likely perpetuate his impulsive sexual behaviors would be counter-indicated from a clinical perspective. After these interactions with Urology and Behavioral Health, the applicant appears to have stopped seeking treatment from both departments. c. There is no indication in the applicant’s military medical records that he failed to meet military retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). d. The applicant’s electronic VA medical record was reviewed. He is rated as 100 percent service connected by the VA for the following conditions: 70 percent for PTSD related to combat, 30 percent for irritable colon; 30 percent for maxillary chronic sinusitis; 30 percent for bronchial asthma; 30 percent for migraine headaches; 10 percent for limited motion of ankle; 10 percent for lumbosacral or cervical strain; 10 percent tinnitus; 0 percent allergic or vasomotor; 0 percent deformity of the penis. e. A 30 October 2008 VA medical document titled “Consult Psychology Initial Mental Health Evaluation” was reviewed. This document states the following: details and overview of problem: patient presents with concerns regarding having a sexual addiction and inappropriate sexual relationships with hundreds of women with is having a great negative impact on his home and work life. The patient has lost jobs and marriages due to his sexual addictions and inappropriate relationships with co-workers/subordinates. The patient would like therapy to address this area of concern and underlying issues. He had been in individual therapy in Virginia with a private therapist in 2006 and would like to restart therapy. He did not report any trauma symptoms and the summary of his PTSD clinical evaluation show he did not present with PTSD. f. The applicant has been diagnosed with PTSD by the VA based upon combat stressors he experienced when he deployed to Iraq in 2007 – 2008. He contends that his sexual misconduct was due, in large part, to the PTSD he developed as a result of this combat tour of duty. Review of his military medical records indicates however that he reported to military behavioral health that he had a long history of engaging in sexually inappropriate behaviors (to include with clients and co-workers) which predate his deployment to Iraq. He also reported to the VA that he began treatment for his sexually inappropriate behaviors in 2006. These dates predate the date of his deployment and subsequent diagnosis of PTSD and indicate his sexually inappropriate behaviors existed prior to his diagnosis of PTSD. It is also important to note that PTSD does not mitigate sexually related behaviors as these are not of the natural history or sequelae of PTSD. g. The applicant has been diagnosed with ICD, not otherwise specified, by both the military and the VA. This diagnosis was made based upon the applicant’s history of impulsive sexual behaviors and inappropriate sexual relationships which have caused him much personal and occupational difficulty. While the impulse control disorder explains his misconduct, it neither excuses nor mitigates the said misconduct. ICD does not impede reality testing nor does it impair one’s ability to distinguish right from wrong and act accordingly. As such, they do not abrogate one’s responsibility for engaging in unacceptable behaviors such as inappropriately touching a member of the opposite sex. h. OCD as with ICD does not interfere with one’s reality testing or ability to distinguish right from wrong. OCD typically does not cause one to engage in sexually inappropriate activity towards others and also does not mitigate such behavior. i. With regard to bipolar disorder, while mania can lead to hypersexual and inappropriate sexual behaviors, there is no indication in the applicant’s military medical record that he was suffering from mania or manic type symptoms while he was on active duty. His military medical record indicates that he sought behavioral health treatment specifically for his sexually inappropriate behaviors. There is no documentation of any accompanying manic-type symptoms. Additionally, there is no documentation of the applicant receiving a permanent physical profile for bipolar disorder, no history of him receiving mood stabilizing medication while on active duty, and no history of recurrent or prolonged psychiatric hospitalization while on active duty. Sexually inappropriate behaviors alone do not constitute mania or bipolar disorder. The medical documentation submitted by the applicant indicates his diagnosis of bipolar disorder was made on 20 March 2018, years after his discharge from active duty. j. While the applicant has reported he suffered from a TBI, there is no documentation of a TBI in either his military or VA medical record. k. The ARBA psychiatrist reviewed all of the applicant’s available medical treatment records, to include civilian medial documentation he provided, his military medical records, and his VA medical records and concluded his military medical records do support the existence of PTSD at the time of his discharge, but that he did meet medical retention standards at the time of his service. The applicant’s diagnosis of PTSD is not a mitigating factor in the misconduct that resulted in his NJP and General Officer Punitive Reprimand. There are no behavioral health diagnoses that mitigate his misconduct. A copy of the complete medical advisory was provided to the Board for their review and consideration. 37. The applicant was provided a copy of the advisory opinion on 10 June 2019 and given an opportunity to submit comments. He responded on 9 July 2019, stating: a. The advisory opinion is deeply flawed and erroneous in its factual timeline and its analysis of the evidence in the record. It also reflects a fundamental error in its understanding of the argument underlying his application to the ABCMR, especially the nature of the newly discovered medical evidence. The new medical diagnosis records were not created until 2016, when he first sought treatment from VA psychologists and psychiatrists who provided after the fact diagnoses of several severe psychological disorders that have existed, undiagnosed, for at least a decade or more. The onset date for his mental illnesses pre-date his Iraq combat by years. b. In broad terms the advisory opinion conflates diagnosis dates with onset dates. It also incorrectly assumes his multiple mental illnesses were only caused by Iraq trauma and PTSD, even though the psychiatric disorders existed well before his Iraq deployment and were only aggravated by war trauma PTSD. The advisory opinion also suffers from the logical fallacy of assuming the absence of active duty military medical records on a given date proves the absence of a medical condition on that date. Nothing could be more untrue. c. Just because he had not yet sought VA treatment before 2012 did not by any means imply he did not suffer from manic episodes of bipolar disorder, ICD, OCD, or PTSD in 2012 or even in 2005. On the contrary, there is evidence in the record that his bipolar disorder, ICD, OCD, and PTSD certainly existed as of 2008, perhaps even as early as 2005 or earlier. His treatment records indicate PTSD from years of child abuse that pre-dated his Iraq deployment and was merely aggravated by combat trauma in Iraq. d. The advisory opinion incorrectly states he engaged in sexual misconduct, even though he was found not guilty of any sexual misconduct. That fact is beyond dispute. In 2012, while unmedicated, he was disciplined only for touching a female Airman on the arm during friendly conversation in a very public place on based, as part of a manic, impulsive, and compulsive attempt to win approval and attention from her. There was nothing sexual about it so he was found not guilty of that charge. The conduct was merely the symptom of mental illness. It was not morally wrong or sexual. It was not misconduct at all. It was an untreated psychiatric disorder whose symptoms were manic attention-seeking and approval-seeking from females. He was found not guilty of any form of sexual misconduct as no sexual body parts were touched and there was no sexual innuendo or discussion whatsoever. e. Nonetheless, the agency psychiatrist used the words “sexual” or “sexually” no less than 12 times in one paragraph on pages 8-9 of the opinion and he referenced several irrelevant, fully consensual relationships from decades ago. He clearly misunderstood not only the non-sexual nature of the conduct, but also the fact that the 2012 arm touching was merely the manic, impulsive, and compulsive symptom of his then undiagnosed conditions. f. He has suffered from bipolar mania ICD, OCD, and PTSD from child abuse for much of his 30-year military career, not just since the 2008 Iraq war trauma. Unfortunately, he suffered from years of extensive physical and mental child abuse at the hands of a cruel, vengeful mother who never wanted children. She told him every week she wished she could have had an abortion in the 1960s and blamed him for ruining her life. He was physically beaten and sent to the hospital. His head still bears the scar of the high-heeled shoe she threw at his head, splitting open his skull and the hockey stick she hit him with as a child. The emotional scars are even more severe. A child is not meant to be bloodied by his own mother. Military service aggravated his childhood trauma, resulting in manifest symptoms of his conditions in the 2005-2006 era, the first time he sought treatment at the psychologist level. After the symptoms subsided somewhat, he was ok for a while, but then his Iraq war trauma intensified his PTSD, bipolar mania, ICD, and OCD. g. The agency psychiatrist incorrectly focused on the ability to distinguish right from wrong. This is the wrong test. To his unmedicated brain, there was nothing remotely wrong with trying to win favorable attention or approval from females. He was unable to detect there was anything wrong with arm-touching to try to connect on a human level and garner attention and approval. In his mind, he was just being friendly and personable. He had no idea he was perceived as doing anything wrong at the time. h. Alone in Germany in 2012, he was suffering from a manic attack, with adrenaline, dopamine, and other chemicals rushing through is brain. All he knew at the time was he was trying to be friendly, charming, and personable in order to get positive feedback from a female, which is something his brain craved in manic fashion. It was an irresistible impulse and compulsive craving for female approval. That 2012 conduct was not sexual. The conduct was merely a symptom of multiple related psychiatric disorders that were compelling his brain to impress this female, connect with her, touch her on the arm, and make her like him. It was chemical and hormonal and beyond his control, but not misconduct and not a moral issue of right or wrong. AT the time he had no idea he was doing anything wrong. The proof that the behavior was chemical can be seen in the fact that he has no symptoms and does not engage in this behavior when he is on his medications. On the issue of the ability to distinguish right from wrong, the medical opinion of Dr. ____, the PhD psychologist hired by the VA as an expert is dispositive i. The VA medical records submitted by the impartial psychiatrists and psychologists clearly document that his mental disabilities and psychiatric disorders have been clinically diagnosed as the proximate cause of the misconduct. That conclusion is found repeatedly throughout his OPM discharge paperwork removing him from Federal Service based on medical inability to perform. The Maryland Unemployment judge and his SSA supervisor concluded there was no actual misconduct at his civilian job, simply medical inability to perform because the symptoms of his mental illnesses. j. For some reason, the Board’s own agency psychologist is the only mental health professional out of step with all the VA psychologists and psychiatrists on this crucial point. Perhaps there is an element of agency bias on the part of the agency psychiatrist. He has directly contradicted the clinical findings of all the VA treating professionals who have actually sat down with him, examined him, and counseled him for hours and hours over months and months. He hereby respectfully requests an independent review of the findings of the agency psychiatrist by an independent expert in psychology or psychiatry. The ABCMR’s own in-house psychiatrist flatly contradicted the findings of all the other treating physicians hired by the VA to diagnose and treat him in person. The agency psychiatrist has obviously never met him or examined him and since he has never examined him, has no basis for offering a medical opinion in this case. k. The medical advisor misperceived the factual timeline and incorrectly focused on the fact that his 2006 symptoms predated the date of his deployment and subsequent diagnosis, the lack of medical documentation, permanent physical profile, history of medication, or psychiatric hospitalization until years after his discharge. The advisor incorrectly turns his argument on its head, resulting in several perverse conclusions. Of course there was no medical documentation, physical profile, medication, hospitalization, or diagnosis of manic bipolar disorder, ICD, OCD, or PTSD prior to 2016. That was his whole point in his application for reconsideration; it was based on new evidence. He did not seek VA medical diagnosis or treatment prior to 2016 and did not know he had a mental illness until 2016. l. He was careful to avoid ever going to any Army doctors or psychologists out of fear of getting a medical profile or being sent to a medical board for potential discharge. He actively avoided military medical treatment and minimized his symptoms whenever asked about PTSD or any mental disorders throughout most of his military career as there was an extraordinary stigma during those years and had a Top Secret security clearance that could have been put at risk. When he went to Tricare doctors in 2006, he believed those records would be kept private and separate from his actual military treatment facility records and not wind up in his Army health records. He was not diagnosed with any particular mental health condition in 2006. It was not until 2016 when he first went to the VA because he began to realize and admit to himself that he might actually have a serious psychiatric condition. The absence of medical records is certainly not proof that the mental illness did not exist and were not the cause of the symptoms that were punished in 2012. m. The VA legal standard for disability compensation requires only that the disability was aggravated by military service, not necessarily started during active duty. As an undercurrent throughout the opinion, there appears to be a misperception that his claim is that his mental disabilities started in Iraq and did not exist before that 2008 war trauma or combat-related PTSD. That is not the case. He has had mental conditions for at least a decade, with symptoms manifesting as early as 2005 or 2006, but he did not receive a diagnosis until 2016. The medical advisor seems to confuse the diagnosis date with the onset date. Of the course, the VA standard for a service-connected disability rating states the disability must have either been incurred or aggravated by military service. Federal law also codifies that aggravation of a pre-existing non-service-connected disability will be entitled to VA disability compensation, even if the mental health condition existed before military service, provided the service-connected injury, illness, or trauma caused aggravation of the preexisting condition. n. It is circular reasoning for the agency medical advisor to conclude that the lack of active duty medical records in 2012 means he did not suffer from manic symptoms at the time of the September 2012 meeting with the Airman in Germany. Obviously, if he had a diagnosis or medical records at the time, he would have presented them to the commander in mitigation or excuse on medical grounds. But those records did not yet exist because he did not know he suffered from a mental illness at the time. He was mentally impaired at the time without knowing it and that was the cause of his conduct. Most importantly, and lost on the agency psychiatrist, he had no idea he was doing anything wrong at the time. That is the essence of his argument in mitigation and excuse. He did not know he was doing anything wrong at the time, so it was not misconduct. He was not able to distinguish right from wrong in that context and could not read the reaction or social cues of the Airman correctly, due to his disability. He had no idea she felt uncomfortable. o. In conclusion, the medical advisory opinion contains many logical fallacies and factual errors. It must be reversed, rejected, sent back for a corrected opinion, and stricken from the file. It remains an error and injustice to punish a Soldier for the symptoms of mental illness, especially when that Soldier lacked the ability to distinguish right from wrong due to that mental impairment. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the CID report with supporting documents, the actions taken by the chain of command and the determination of the Army Grade Determination Board. applicant’s rebuttal of the opinion. The Board considered the applicant’s contentions, but found insufficient evidence to show that the applicant’s name on the CID ROI was in error or unjust. As such, the Board determined that correction of the CID ROI was not warranted. 2. The Board considered the applicant’s statements regarding his medical conditions, to include VA rated conditions, and the supporting documentation he provided. The Board considered the review and conclusions of the medical advising official. The Board concurred with the medical advising official’s conclusion that the applicant’s behavioral health conditions were not mitigating for the behaviors that led to NJP and the GOMOR. The Board determined, based on a preponderance of evidence, that the Article 15, General Officer Memorandum of Reprimand, and the decision by the Army Grade Determination Board that his service as a Colonel was not satisfactory were not in error or unjust. 3. The applicant's request for a personal appearance hearing was carefully considered. 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. 4. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 2. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 3. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. a. Paragraph 3-3 (Relationship of nonjudicial punishment to nonpunitive measures), subparagraph a. (General) provides that NJP is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct. Subparagraph b. (Reprimands and admonitions) (1) provides that Commanding officers have authority to give admonitions or reprimands either as an administrative measure (non-punitive) or as nonjudicial punishment (punitive). b. Paragraph 3-6 (Filing determination) provides that: (1) A commander’s decision on whether to file a record of NJP on the performance section of a Soldier’s OMPF is as important as the decision on whether to impose NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted folder of his OMPF. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. (2) If a record of nonjudicial punishment has been designated for filing in a Soldier’s restricted folder, the Soldier’s OMPF will be reviewed to determine if the restricted folder contains a previous record of NJP. In those cases in which there exists a previous DA Form 2627, which has not been wholly set aside but has been filed in the restricted folder and in which prior to that punishment the Soldier was in the grade of sergeant (SGT) or higher, the present DA Form 2627 will be filed in the performance folder. The filing should be recorded on the present DA Form 2627 in block 11. The Soldier concerned and the imposing commander will be informed of the filing of the DA Form 2627 in the performance folder. c. Paragraph 3-36 (Records of Punishment) provides that all Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627. d. Paragraph 3-37 (Distribution and filing of DA Form 2627 and allied documents), sub-paragraph b. (Original of DA Form 2627) (1) (Place of filing) (a) provides that the decision to file the report of NJP (DA Form 2627) in the Performance or Restricted folders of the OMPF will be made by the imposing commander at the time punishment is imposed. 4. Army Regulation 600-8-104 (Military Personnel Information Management/Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF. It provides that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 5. Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance pertaining to investigative records, files, and reports. Paragraph 4-4b provides that requests to amend CID ROIs will be considered only under the provisions of this regulation. Requests for amendment of a CID ROI will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name was entered as a result of mistaken identity. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 6. Department of Defense Instruction (DoDI) 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense) contains the authority and criteria for titling decisions and states that titling only requires credible information that an offense may have been committed. It states that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the Defense Central Index of Investigations (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred." The criteria for titling are a determination that credible information exists that a person: may have committed a criminal offense or is otherwise made the object of a criminal investigation. 7. DoDI 5505.07 contains further legal guidance. a. Section 6.1. Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in DCII. (This Instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. b. Section 6.3. The DoD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. c. Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: (1) Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and DCII in the case of mistaken identity; i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII. (2) Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. d. Section 6.9. When reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 8. DODI 5505.07 also provides the following definitions: a. E1.1.1 – Credible Information: Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts are true. b. E1.1.2 – Criminal Investigation: Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution. c. E1.1.3 – DCII: A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DoD, as well as selected other Federal agencies, to determine security clearance status and the existence/physical location of criminal and personnel security investigative files. The DCII database is physically maintained by the Defense Security Service; however, the data it contains is the responsibility of the contributing agencies. d. E1.1.4 – Incidental: Any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes. e. E1.1.5 – Indexing: Refers to the procedure whereby an organization responsible for conducting criminal investigations submits identifying information concerning subjects, victims, or incidentals of investigations for addition to the DCII. f. E1.1.6 – Subject: A person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense. g. E1.1.7 – Title Block: Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses. h. E1.1.8 – Titling: Placing the name(s) of person(s), corporation(s), other legal entity, organization(s), or occurrence(s) in the title block of a criminal investigative report. 9. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board (AGDRB). The AGDRB determines or recommends the highest grade satisfactorily held for service or physical disability retirement, retirement pay, and separation for physical disability. a. Paragraph 2-4 states a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. The AGDRB will consider each case on its own merits. Generally, determination will be based on the Soldier's overall service in the grade in question. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the nature and severity of misconduct, if any. Although the punishment an individual has received may be one factor in determining the seriousness of misconduct, the amount of punishment will not be considered in determining whether "the individual has been punished enough." Grade determinations are not considered punitive and the standard for grade determinations is "highest grade satisfactorily served," not whether the individual has been sufficiently punished. b. Paragraph 2-4 further states circumstances pertinent to whether such service is found satisfactory include, but are not limited to the following: * medical reasons, which may been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance * compassionate circumstances * lengths of time in grade * performance level, as reflected in evaluation reports and other portions of the service record that reflect performance; in reviewing these matters, the AGDRB will consider whether reporting officials were aware of the misconduct or performance giving rise to the grade determination * nature and severity of misconduct, if any * the grade at which the misconduct was committed c. Paragraph 2-5 states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as a result of elimination action will not, by itself, preclude retirement in the highest grade. d. Paragraph 2-6 states if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2-5 applies. e. Paragraph 2-7 states all active duty or active Federal service may be considered as continuous, or each period of duty may be considered separately if it is to the Soldier’s benefit, unless a specific interpretation is required by statute. f. Paragraph 2-10 states if a Soldier, retiree, or other former Soldier believes an error or injustice has occurred with respect to his or her grade determination, the individual can apply to the Army Board for Correction of Military Records. 10. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. 11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. 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. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180006148 2 1