ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:   20 November 2020DOCKET NUMBER:  AR20190003089 


APPLICANT REQUESTS: reconsideration of his prior denied requests in conjunction 
with new requests as follows: 

.consideration of his mental health conditions before a Medical Evaluation Board


(MEB) and Physical Evaluation Board (PEB) for placement on the TemporaryDisability Retired List (TDRL) or Permanent Disability Retired List (PDRL)
.if not placed on the TDRL or PDRL, reinstatement on active duty

.if reinstated on active duty, removal from his records of a General OfficerMemorandum of Reprimand (GOMOR) and two referred DA Forms 67-9 (OfficerEvaluation Report (OER)) and retroactive consideration for promotion on theFiscal Year 2008 Major Promotion Board



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

























•Complaint filed in U.S. Court of Federal Claims•U.S. Court of Federal Claims order•Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) in Docket Number AR20150012081•multiple Marks Psychiatry & Forensic Services letters and progress notes•Red River Hospital Discharge Summary•DD Form 149 (Application for Correction of Military Record)•self-authored statement•multiple pages of Standard Form 600 (Chronological Record of Medical Care)•Lawton Police Department Offense Report•statement of B____•Board of Inquiry testimony of Dr. P____•applicant’s Board of Inquiry testimony 



FACTS: 

1.On 1 February 2019, the U.S. Court of Federal Claims agreed to the applicant’smotion for a voluntary remand of his claims to the ABCMR and subsequently orderedthe case remanded to the ABCMR for reconsideration based on the following:

a.This is a military pay case that was preceded by an adverse decision by theABCMR.  It is appropriate for the applicant to have one final opportunity to provide the ABCMR with the mental health records he contends were not previously considered.  It is appropriate for the ABCMR to have an opportunity to review his claims based upon any additional mental health records not previously considered.  The ABCMR could potentially provide the applicant with all the relief he seeks, which would moot his court action and obviate the need for any further litigation in Federal Court. 

b.In his claim before Federal Court, the applicant states he was involuntarilydischarged in 2012 with an honorable characterization of service.  Since his discharge, he has sought reinstatement on active duty due to a misdiagnosis of post-traumatic stress disorder (PTSD) and depression, both of which he was treated for while on active duty.  His initial treatment was sought from the Army’s behavioral health system prior to conducting transgressions deemed unbecoming of a military officer.  His treatment plan was developed by a  State mental health hospital and implemented by himself and this hospital determined his transgressions were service-connected. 

c.Despite being directed by an Army psychiatrist to get treatment from the State institution, the medical records from that institution were never incorporated into his Army mental health records.  For whatever reason, the ABCMR did not take these records or other evidence the applicant presented into consideration.  He submitted vital documentation, including the medical records from the  State institution that was not initially acknowledged or mentioned in the Board’s evaluation process.  This information is critical in understanding the totality of the applicant’s circumstances, particularly that his transgressions were service-connected.  The applicant argues that he would still be on active duty if he had been properly diagnosed and treated when he initially sought help.  He is seeking monetary relief from the U.S. Government in the amount of $922,176.00. 

2.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumbersAR20140008998 on 7 April 2015 and AR20150012081 on 6 December 2016.

3.The applicant states:

a.He is requesting relief based on symptoms of service-connected majordepression he had prior to his involuntary separation.  He enclosed a court order directing a voluntary remand of his case to the ABCMR on the condition that the Board considers his mental health records not previously reviewed.  The Board previously denied his request twice without primarily acknowledging two essential diagnoses from the Red River Mental Hospital and from Dr. M____, both of which occurred prior to his involuntary separation. 

b.He understands his case is very convoluted; therefor, he further requests theBoard consider directing an MEB followed by a PEB.  With adequate resources, all of his medical records, OERs, live testimonies from psychiatrists and his rebuttal statements a live MEB/PEB can do the following: 

.validate the Army’s current position

.recommend his placement on the TDRL due to unfitness for duty

.recommend his placement on the PDRL due to unfitness for duty

.recommend reinstatement on active duty in his prior branch

.recommend reinstatement on active duty in another branch due to any physicallimitations

.if reinstated on active duty, he requests removal of his referred OERs and thefrom his OMPF and the GOMOR either removed or moved to his restricted file

.if reinstated on active duty he also requests consideration for promotion for theFiscal Year 2008 Major Promotion Board, from which he was removed







c. He was initially assessed by Fort Sill’s Behavioral Health Clinic in August 2008 and determined to have suicidal tendencies from possible depression/anxiety prior to his transgressions.  Medical officials did not understand the severity of his major depression, but his symptoms are documented.  He attached a copy of the medical record documenting this medical appointment. d. He attached a copy of a November 2008 Lawton Fort Sill Police Report. Leadership utilized a misrepresentation of the facts in the Lawton Fort Sill Police Report as well as false testimony supplied by Ms. B____, the woman with whom he had an affair.  His leadership validated her statement with the Fort Sill Police Report, stating he admitted to several affairs.  Ms. B____ stated he had several affairs, including impregnating the wife of a deployed Soldier and impregnating her with twins.  Leadership validated her statement with the Fort Sill Police Report stating he admitted to several affairs.  Officer P____ interviewed his wife at the time and himself.  In the process of developing the report, he mistakenly created a false narrative based on both interviews.  He was also recorded during his interview in which he admitted to having an affair with Ms. B____.  A police report is not an official documentation of testimony.  Ms. B____ did not provide any other proof outside of a signed affidavit to his command and she later recanted her statement with another affidavit in 2010.  Her wrongful allegation and the acknowledgment of his recorded testimony to Officer P____ were proven during a Board of Inquiry Hearing in April 2012. e. During the Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation, he was ordered to separate from his wife.  He was isolated and felt alone.  The effect of the GOMOR caused his depression to worsen to the point he attempted suicide.  His command inadvertently interfered in him receiving 










proper assistance form the Fort Sill Mental Health Clinic by informing he admitted to having several affairs.  This is documented in his mental health records.   f. While at Red River Mental Health Hospital, they focused on the affair and domestic violence as symptoms of his depression from his deployments.  He was able to identify his anger, his making through covert depression, need for adrenaline, lack of self-worth, self-blaming, and survivor’s remorse.  Unfortunately, his continuity of treatment was never maintained by Fort Sill’s Mental Health Clinic.  The records from Red River should have been placed in his military mental health records and Fort Sill still deferred his treatment. g. The Fort Stewart Commanding General granted him a Board of Inquiry in April 2012 based on a diagnosis of severe PTSD due to an elimination board.  However, the Chief of the MEB Behavioral Health, Dr. P____ testified that the PTSD diagnosis was erroneously placed in his file by an unqualified official.  She did however testify she saw symptoms of depression in his file.  She also testified she was unable to validate the cause because she never personally evaluated him.  The symptoms from Red River Mental Health Hospital were never placed in his military health records plus no one had ever explained his symptoms to him at that point. h. During the Board of Inquiry cross examination in April 2012, he was asked why he had the affair and he responded that it wasn’t anything his wife didn’t do, but it was what he was trying to give himself.  In August 2012, he sought an independent evaluation from Dr. M____ who came to the same conclusion as Red River Mental Health Hospital prior to his separation. i. He is currently the business management coordinator for a behavioral health crisis center similar to the Red River Mental Health Hospital.  The primary reason he desired to work at a crisis unit was to minimize the lack of continuity of care he experienced.  A day doesn’t go by without him reflecting on his circumstances, but his obligation to his patients is therapeutic.  This position allows him to see the challenges in a socialistic mental health care system.  It is common for technicians to chart on the wrong patient, administer wrong medications, omit vital documentation from medical files, etc.  And often, their patients come back because mental health treatment is not an exact science.  It is sometimes trial and error because people are different. j. During his last request for relief, the Board identified several instances where he displayed a calm demeanor during engagements.  As a former commander, he learned to mask his depression because he had to lead Soldiers into combat.  This is known as covert depression.  The Board also stated its psychiatrist didn’t find anywhere in his military records where it was documented his affair and domestic violence were symptoms of his depression.  But this was precisely the reason he submitted the medical records from Red River Mental Health Hospital and the diagnosis from Dr. 




M____.  In both instances, his time was dedicated to their care and observations and both took the time to understand all aspects of is circumstances. k. Officers are held to the highest standards.  Officers also take responsibility for their actions.  He has always taken responsibility and if he was afforded the opportunity at the beginning of his treatment, then he would still be on active duty.  The affair and domestic violence were both symptoms of his severe depression.  People suffering from severe depression do not all exhibit the same symptoms. l. He could not control the actions of Ms. B____ or his command.  He does not place fault or judgment.  His command followed protocol to the best of their abilities.  But what he did control is understanding what was affecting him and developed a treatment plan through Red River which allowed him to serve honorably for 4 more years.  If he were to be eliminated, it should have taken place at the time of the accused violations.  Operation Iraqi Freedom rotation 2007-2008 had the highest suicide rate and Fort Sill was amongst the locations with the highest suicides during that time.  If the Board of Inquiry discovered he did not have multiple affairs and did not impregnate multiple women, then why was he suicidal?  He is afraid the severity of the GOMOR overshadowed his depression and solidified Army official into not taking his request for relief seriously.  A live MEB will allow qualified officials to determine his disposition at critical times of his deployments and other specific periods in his military career.  A determination should be made by evaluating his medical records and medical officials who have personally evaluated him.  Thank you for your attention to this matter. 

4.The applicant initially enlisted in the Regular Army on 9 July 1990 and was honorablydischarged on 7 September 1994 after 4 years, 1 month, and 29 days of net activeservice in order to enter the Officer Training Program.

5.He was appointed a Reserve Commissioned Officer of the Army effective
12 December 1998 and ordered to active duty, entering on 19 March 1999, in order tofulfill his obligated volunteer service of 4 years.

6.The applicant deployed to Iraq during the following periods:

.from 7 February 2004 through 6 February 2005

.from 20 August 2006 through 20 November 2007



7.The applicant provided a Standard Form 600, dated 18 August 2008, which shows:

a.He was accompanied by his wife as a walk-in patient to the Mental Health Clinicat Reynolds Army Community Hospital (RACH) on the date of the form.  He and his wife reported he increased his alcohol consumption since his return from his Iraq deployments.  He also reported depressive symptoms, irritability, uncomfortableness in 
crowds, lack of motivation, impatience, fatigue, problems relaxing, and erectile dysfunction.  He stated he wanted to get help several months ago but never followed through and his wife told him on the day of the visit that she would go to his commander and tell him about her husband’s problems if he did not go to the mental health clinic. 

b.He appeared in no acute distress and denied suicidal/homicidal ideations (SI/HI),or psychotic symptoms.  His wife related he mentioned wanting to kill himself and that when he drinks he would say things like “Where’s the gun – I’ll blow my brains out right now.”  Risk issues appears minimal to moderate at the time.  The notes indicate a case would be started with Dr. D____ to rule out (R/O) depressive disorder, not otherwise specified (NOS) and alcohol abuse.  The applicant may benefit from medications and he was amendable to taking them, but was not amenable to group therapy and would prefer one on one therapy for post-deployment related issues.  He and his wife indicated an interest in marital counseling and might need referral so Social Work Services.  They were advised to schedule follow up as needed. 

c.The assessment and plan (A/P) lists alcohol abuse and one individual psychiatrictherapy approximately 45-50 minutes in duration.  The applicant was released without limitations for follow-up as needed.  The applicant agreed to go to the Army Substance Abuse Program (ASAP) and set up an appointment for intake. 

8.A Lawton Police Department Offense Report, dated 21 November 2008, which ispartially illegible shows:

a.A police officer was dispatched for a domestic abuse call that happened on 17November 2008 when the applicant assaulted his wife at their residence.  The applicant’s wife said they were arguing when the applicant began pushing her and grabbed a police type thick plastic baton and hit her over the head, whereby she went to the ground and almost became unconscious, then the applicant began dragging her across the ground.  The applicant’s wife subsequently sought medical treatment at the RACH and assistance from the Fort Sill Advocacy office.  The applicant stated he and his wife were having problems and his wife was a good woman, but he needed some time apart from her. 

b.Neither the applicant’s nor his wife’s interview statements to the police areavailable for review.  The applicant was placed on a military protective order, restraining him from visiting his wife.  He was advised of his rights, among them to remain silent and be represented by a lawyer, which he initially waived on 21 November 2008, then later asserted on 11 December 2008. 

9.A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)shows an investigation pursuant to Army Regulation 15-6 convened on 26 November2008.

10.A 428th Field Artillery Brigade memorandum for record, dated 15 December 2008,reports on the findings and recommendations of the AR 15-6 Investigating Officer.

a.It was substantiated that the applicant violated Article 128 of the Uniform Codeof Military Justice (UCMJ) by committing assault against his wife by intentionally striking his wife in anger, which he admitted to.  Photographic evidence of his wife’s visit to the emergency room was provided as well as a sworn statement by his wife.  The physical fight between the two was instigated after a verbal confrontation regarding the applicant’s inappropriate sexual relationships with other women. 

b.It was substantiated that the applicant violated Article 134 of the UCMJ by hiswife’s claim and his own admission to wrongfully having sexually active relationships with other women while he was married to his wife. 

c.It was substantiated that the applicant violated Article 133 of the UCMJ inconducting himself in a manner unbecoming an office3r and a gentleman.  It was clear he acted in a dishonorable manner and compromised his character as an officer and a gentleman. 

d.Other findings that affected the conclusions were that the applicant had a historyof mental health problems and had been seeking help.  His wife stated she asked her husband to seek help in July 2008, which he did, and was referred to the ASAP program.  The applicant declined to comment further about his involvement with the Mental Health Clinic.  The applicant’s wife also no longer felt her husband was a threat and the civilian protective order previously put in place was removed. 

e.The recommendations were as follows:

.the applicant should receive a GOMOR

.he should be immediately removed from his duties involving officer instructionand reassigned to a positon of lesser influence

.he should continue to seek professional help through the Mental Health Clinic,Family Advocacy and the Chapel, including anger management and marriagecounseling

.the no contact order between the applicant and his wife should be lifted, as thecivilian protective order was removed and his wife no longer felt threatened



11. The applicant’s records contain a DA Form 2823 (Sworn Statement), by a Ms.  B____, dated 7 January 2009, which details her sexual relationship with the applicant, to include her pregnancy by him in November 2008 of which the applicant was made aware.





12.The applicant provided a second statement by Ms. B_____, undated, but titled “Statement for [the applicant’s] GOMOR January 2009,” which states she was never impregnated by the applicant and she only said that to get back at him when she thought he was seeing another woman.  When he refused to continue to see her, she lied to both the applicant’s wife and his commander, including regarding impregnating the wife of a deployed Soldier, in order to get him in trouble and to keep their relationship going.  When it came close to her due date and he asked her about the pregnancy, she told the applicant she had a miscarriage.13.A GOMOR, signed by the Commanding General, U.S. Army Field Artillery Center and Fort Sill, dated 29 January 2009, shows:a.The applicant was reprimanded for domestic assault and battery for beating, choking, and threatening his wife, for ongoing multiple adulterous affairs with women including one married to a deployed Soldier, and for conduct unbecoming an officer and gentleman. 

b.On 16 November 2008, he had a sexual encounter with a woman other than hiswife which sparked a fight with his wife when she confronted him about it.  He attacked her by hitting her with his hands then with a plastic baton on her face and head to the brink of unconsciousness, leaving her with bruises still visible 5 days later.  When she fell, he dragged her across the floor, choked her, and scratched her on her neck.  He verbally threatened her to the point that she feared for her life. 

c.The applicant told his wife he met the other woman through an online websiteand admitted to the investigating police he engaged in affairs with several other women. His wife spoke to one of the other women who revealed his other affairs, to include impregnating the wife of a deployed Soldier.  He also admitted to being the father of twins with one of the women.  His behavior was repugnant and indicated a lack of judgment in his professional and personal life.  He failed to lead by example. 

d.This reprimand was imposed as an administrative measure and not aspunishment under Article 15 of the UCMJ.  He was to acknowledge the GORMOR and return it with any statements in rebuttal within 15 calendar days.  A decision on imposing and filing the reprimand would be withheld until that time. 

14.A Standard Form 600, dated 14 February 2009, shows:

a.The applicant was seen at the RACH emergency room after he was brought infor attempting to hang himself in his garage.  He became more depressed over the past 2 weeks, subsequent to receiving a GOMOR and being placed on Zoloft.  His hope for the future started to decline after the GOMOR, being perceived by others as a 
substandard Soldier, being forced out of the military, and the no contact order following a domestic dispute which kept him from talking to his wife. 

b.On 12 February 2009, he bought a rope from Walmart and went to the garage ofhis wife’s house, tying the rope around a steel beam.  He got up on a table preparing to jump, but in the final moments of contemplating hanging himself, he worried he might go to hell and decided against it, instead calling his parents then eventually texting his wife that he had been at the house preparing to hang himself.  His wife called his unit and the unit contacted the applicant, bringing him to the emergency room. 

c.He was deemed to be at high risk to harm himself in the imminent future, as hismilitary career was likely coming to an end and depression and alcohol consumption make his likelihood of acting quite high.  Toward that end, the applicant agreed to go to Red River psychiatric hospital versus receiving an emergency order of detention to the local hospital, which his provider stated he would do if needed to ensure the applicant’s safety.  Red River Hospital accepted the applicant and the applicant was to follow up with his military provider upon discharge from the hospital. 

15.A Red River Hospital Discharge Summary, shows:

a.The applicant was admitted to the hospital’s adult inpatient program on
14 February 2009 after trying to hang himself and given an admission diagnoses of major depressive disorder, recurrent, and severe addiction. 

b.He was increasingly depressed since November 2008 after being charged withadultery and separated from his wife.  He had a 14-year Army career and knew nothing else.  He felt depression, depressed mood, irritability, poor concentration, poor sleep, isolation, helplessness, and thoughts of suicide.  His memory is intact; his mood depressed; his affect dysphoric (general unease or dissatisfaction).  His thought process was well organized and he recognized the need for treatment. 

c.His treatment plan included individual and group therapy and medicationmanagement.  He worked on mood improvement skills and ways to decrease anxiety and improve his mood.  He worked on building strength and motivation within himself and worked on relaxation techniques and communication skills.  Treatment went well and he was improving his communication and healthy ways to cope with is emotions and self-empowerment.  Overall he was doing well and tolerated medications without any side effect.  His mood and affect improved. 

d.The applicant’s discharge diagnosis was major depressive disorder, recurrentand severe.  He was discharged on 24 February 2009 with prescriptions for daily Zoloft and Ambien at bedtime for sleep.  He was discharged in stable condition with no SI/HI.  
His discharge plan was to follow up with the Fort Sill Community Mental Health immediately upon arrival at base. 

16.On 5 March 2009, the applicant submitted a lengthy GOMOR rebuttal, stating inpertinent part:

a.He accepts full responsibility for his actions over the past several months.  He



did not live up to the Army’s expectations of his own expectations.  He did assault his wife and have an affair with B____ for several months.  He deeply regrets the decisions he made but the current picture depicted by the investigation is truly not who he is and the actual events during the assault did not occur as detailed during the investigation. b. On 17 February 2008, he did admit to his wife he was having an affair with B____, based on her suspicions and confrontation of him.  During the course of his argument with his wife, she slapped him and he pushed her several times to get her out of his way.  She was blocking the exit to the room and he just wanted to get away from the situation.  AS he continued to push her, she caught his thumb in her mouth and bit it.  He pled with her to let him go and she did, but followed him into the next room screaming at him and showing him emails of his conversation with B___.  He just wanted to be left alone and said he was sorry and told her not to approach him, but she did anyhow.  He was ashamed, hurt, and dismayed about the situation and everything else going on in his life after the deployment.  When she approached he picked up a baton from a Halloween costume that was on the floor and stuck his wife once on the side of the head.  The force and type of object was not enough to knock her to the ground nor did she ever go unconsciousness.  She went to her knees crying saying “Why don’t you just kill me?”  He did not tell her to go get the gun and he would shoot her in the f***ing head.  He told her if she wants to die she knows where the gun is.  He tore up the emails and after throwing them away, his wife kicked him between the legs while she was on the floor.  He then knelt down and grabbed her around the neck, squeezing and telling her to stop it.  It wasn’t worth both of them getting hurt.  He then helped her to her feet and they talked for a couple of hours about the affair and their future plans. c. He joined the Army at 17 years old and truly came to love the Army’s structure and camaraderie.  He was sexually assaulted by his male cousin when he was 13 years old and also grew up an only child in isolated rural South Georgia with a strict father who didn’t allow him to participate in extra-curricular activities.  Despite his inferiority complex, he got a green-to-gold scholarship and truly believed in the Army’s philosophy of building people up and giving them a sense of pride and belongingness.  Unfortunately, some of his immediate supervisors didn’t seem to fully support this goals and he really wanted to change that as a company commander. 

d.He details over multiple pages a great deal of his accomplishments, hard work,and frustrations throughout his Army career to include while in command.  He states that after command he became extremely depressed.  He worked so hard in trying to maintain a standard but he didn’t accomplish it the way he had envisioned.  He felt cheated and was held responsible for everything his companies did or failed to do but wasn’t given any latitude to make any decisions on training based on his assessment. Everything was dictated and he didn’t have time to work on his mentorship program. 

e.He became frustrated about where he was in his life and numb to everythingaround him.  He began to hate people, especially some of his egotistical peers who bragged about their deployment experiences and he started to not trust his leaders.  Whatever tough crisis, he did what had to be done.  He started drinking heavily after the deployment and would have inappropriate conversations with women online because he enjoyed it.  He resented the constant arguments in his marriage and began to resent the Army standard and felt it was a hoax. 

f.He and his wife always had problems, but he never hit her in anger or had anactual affair until after his second deployment.  He wanted to give his wife everything but had nothing left after command.  Trying to deal with is personal guilt, helping his wife deal with her depression, stress of continuing her education, and their financial difficulties became too much for him to bear.  He would constantly drink, yell and break items in the house, so his wife had to get him to self-admit into the ASAP at the Mental Health Clinic in August. 

g.He recently learned that post-deployment anger is a form of male depression andhe has taken steps to control it.  It was never his intention to strike his wife in anger or cheat.  He still loves her and this country and hopefully would like to have the opportunity to command again and take care of some unfinished business.  He still possesses the moral character to make the tough right choices and he undoubtedly has the knowledge and desire. 

17.On 26 March 2009, after due consideration of all matters submitted by the applicantas well as the recommendations of his chain of command, all of whom recommendedfiling the GOMOR in his Official Military Personnel File (OMPF), it was directed that theGOMOR be filed in the applicant’s OMPF.  The GOMOR is filed in the performancefolder of his OMPF

18.The applicant’s DA Form 67-9, covering the period 15 May 2008 through 31 March2009, as a senior instructor/writer is a referred report.  It shows the following:

.“No” was annotated under Army Values for Honor and Loyalty

.his Rater marked “Unsatisfactory Performance, Do Not Promote” stating his dutyperformance was not affected by his extreme amount of personal stress, but


unfortunately his personal conduct did not match his duty performance as an instructor 

.he received a GOMOR during this rating period for not living up to the Army’shigh personal moral standards; though his work performance has been superb, ithas been overshadowed by his personal misconduct

.his personal misconduct and disregard for the Army Values severely limited anyfurther potential for promotion within the Army; do not promoted to major

.his Intermediate Rater and Senior Rater both indicate do not promote to Majorand his Senior Rater rated him “Below Center of Mass Retain”



19.His records contain numerous Standard Forms 600 dated between 27 March 2009and 1 May 2009, which are provided in full to the Board for review and show:

.multiple visits to the Psychiatry Clinic at RACH for medication refill of Zoloft andAmbien and individual/group therapy

.among his listed problems were dysthymic disorder (depressive neurosis),alcohol abuse in remission, adjustment disorder with depressed mood, anxietydisorder not otherwise specified, anger/depression, alienation

.his mental status exams were all normal

.he was evaluated as being low risk for dangerousness or impulsivity posthospitalization

.he was always released from his appointments without limitations



20.On 21 May 2009, the applicant wrote a memorandum to his Battalion Commanderwherein provided comments related to his referred OER.  He states:

a.During the investigation, he was asked to be “left on the platform” as aninstructor and he was.  Despite the daily struggle with uncertainty about his military career, marriage and his financial stability, it never let it affect the way he mentored and taught our future leaders.   

b.His passion in seeing other succeed never died.  You had enough faith in him tolet him continue to instruct and he did not fail in that regard.  So many student personally approached him to thank him for being able to instill a purpose because of his experiences and knowledge. 

c.His OER does not reference his attempts to seek medical treatment before thepersonal misconduct or any diagnosis by his physician during this rating period. 

21.The applicant’s OER covering the period 15 May 2008 through 31 March 2009, wassigned by the rating officials and the applicant and is filed in the performance folder ofhis OMPF.

22.The applicant’s DA Form 67-9, covering the period 1 April 2009 through
30 September 2009, as a senior instructor/writer is a referred report.  It shows thefollowing:

.“Yes” was annotated for all Army Values

.“No” was annotated for meeting Army height and weight standards

.his Rater annotated “Satisfactory Performance, Promote” stating his execution oftaskings was flawless and he will continue to excel if groomed

.he performs physical fitness training twice per day which has resulted in constantimprovement toward meeting Army height and weight standards, which hepredicts he will meet within 6 months

.he had the potential for promotion to major

.his Intermediate Rater indicated improved performance and he definitely has thepotential to work at the field grade level

.his Senior Rater rated him as “Fully Qualified” “Center of Mass” remarking hisperformance the past 5 months showed his desire and determination to stay inthe Army and be competitive for promotion to major and if he continues toimprove should be strongly considered for promotion to major



23.On 5 November 2009, the applicant submitted a rebuttal to this OER, stating:

a.He acknowledged and accepted responsibility for his failure to maintain hisweight standards as a Soldier in the Army.  He comes from an obese family, but during his 15 years in the Army it has been a manageable challenge.  He has always been taped, but able to meet the body fat standards.  For the past year he battled several things which contributed to his weight gain.   

b.He and his wife were separated and he lacked the self-discipline to cook healthymeals, which was normally her responsibility.  He was hospitalized for mental evaluation and during those 10 days at the Red River Mental Clinic he didn’t workout, which contributed to his lack of motivation.  He hated working out with his peers after his return to his unit because he felt they were judgmental.  The increased use of alcohol from depression since his return from his second deployment also contributed to his weight gain. 

c.He has found new meaning to his life and self-worth over the past 6 months andhas made progress.  His repaired his relationship with his wife, graduated from the ASAP program, works on the weekend as a provider to the mental and physically challenged as a way to help with his finances and personal progress, and has made constant progress to get his weight under control. 

24.The applicant’s OER covering the period 1 April 2009 through 30 September 2009,was signed by the rating officials and the applicant and is filed in the performance folderof his OMPF.

25.The applicant deployed to Iraq for a third time from 27 December 2009 through
16 December 2010.

26.The applicant was notified by U.S. Army Human Resources Commandmemorandum, dated 25 May 2010, that he had been identified to show cause forretention on active duty because of misconduct, moral, or professional dereliction.

27.On 28 September 2010, the applicant wrote a lengthy letter to the Department ofArmy Suitability Evaluation Board (DASEB) stating, in pertinent part:

a.His purpose is to explain in full detail how he overcame his challenges after thefiling of the GOMOR.  It was his desire that the DASEB determine the GOMOR served its purpose and it is in the best interest of the Army to transfer it from his performance folder to restricted folder in his OMPF. 

b.He took full responsibility for his actions and understands the ramification of hisdastardly behavior.  The worst of all is that he emotionally scarred and humiliated his wife.  His promotion was suspended prior to his 1 December 2008 pin on date and he embarrassed his entire family, especially his parents who planned on attending his promotion ceremony.  There is not a day that goes by that he is not bothered by the lack of judgment and the continuous horrible lies that destroyed his personal integrity. 

c.He blamed his superiors for not appreciating his sacrifice during his deploymentand was very unhappy in his personal life.  He became an alcoholic and gained a lot of weight.  He was 2 inches from walking off their old dining room table to hang himself during the investigation.  He was at the lowest point in his life and felt no one wanted to hear his story or cared to understand his feelings. 

d.It was his religious faith that kept him from hanging himself.  He was command-directed for a psychological evaluation and spent 10 days in the Red River Mental Institution, which allowed him time to focus on some deep inner problems plaguing him for years.  After the GOMOR filing, he did not regress or blame his command for anything.  He would have done the same if he were in their shoes.  He is just thankful they saw enough in him to not pursue a court-martial and they allowed him to continue teaching and impacting the lives of young officers. 

e.He humbly asks to continue the momentum of improvement he has made sincethe filing.  He has displayed a strong character and is reliable and committed.  He is now within the Army weight standards and is in the best shape ever over the last 15 
years.  He possesses the skills the Army needs and as a commander he always gave Soldiers the opportunity for a second chance.  He has always been a survivor and even if every Soldier that served under him may not have like him, they would all say he was fair.  He is pleading for the same opportunity and he will not waste it if granted. 





28.A DASEB Record of Proceedings, dated 13 January 2011, shows after careful consideration it was determined the available evidence did not provide substantial evidence that the GOMOR has served its intended purpose and that its transfer would be in the best interest of the Army.  Therefore, the DASEB determined the overall merits of the applicant’s case did not warrant the relief requested.29.On 18 April 2012, a Board of Inquiry convened.  Among the evidence and testimony considered by Board of Inquiry were the testimony of the applicant and the testimony of Dr. P____, copies which were both provided by the applicant for the Board’s review.a.In Dr. P____’s testimony she stated she was a retired colonel whose 







position was Chief, MEB, Behavioral Health.  She has evaluated and treated Soldiers needing to be cleared for deployment and been involved in doing fitness for duty determinations, MEBs and chapter evaluations.  She reviewed the applicant’s medical records and made the assessment that he did not describe associative episodes or flashbacks, whereby she might consider he was not responsible for what was going on, thus she would describe his act of violence more of a personality style than PTSD. b. Among the statements in the applicant’s testimony, he states there were things written in the GOMOR that were unsubstantiated.  He made thousands of mistakes, but he also believes he want on a journey to prove he can still serve and learn from those mistakes.  If the Board decides to retain him, he has a plan for his career to continue and stay in operations and welcomes the opportunity to do anything for Soldiers’ resiliency. c. Given the preponderance of the evidence, the Board of Inquiry concluded the applicant did in fact commit adultery and he did in fact have an incident of domestic violence in which he assaulted his wife.  Therefore, the Board of Inquiry found there was sufficient evidence he did commit acts of personal misconduct and that there is sufficient evidence to prove his actions can be considered conduct unbecoming a commissioned officer. d. The Board of Inquiry recommended the applicant be involuntarily separated and receive an honorable discharge. 30. The applicant provided handwritten notes from Dr. M____ Marks Psychiatry & Forensic Services, dated 30 April 2012 and 17 May 2012 which show:

a.Her diagnoses were history of major depression in remission, history of alcoholabuse, not current, and possible dysthymia. 

b.While in the Army the applicant witnessed senseless deaths followed by multiplemoves and was bothered that a supervisor wouldn’t take the time for him.  He felt misunderstood and as if he were just a number in the Army.  He didn’t feel appreciated and received no mentorship. 

c.His current state was general discontentment with work-related issues.  It wasnot clear if he had PTSD in the past – not a current issue.  The plan states no treatment needed; return as needed. 

31.On 23 October 2012, the Army Board of Review for Eliminations convened a board,the complete transcript of which is included for the current Board, to review the action ofthe Board of Inquiry which recommended the applicant’s elimination.

a.Based on a thorough review of all evidence, the Army Board of Review forEliminations recommended the applicant’s elimination from the U.S. Army based on misconduct and moral or professional dereliction, with an honorable characterization of service.   

b.On 31 October 2012, the Deputy Assistant Secretary of the Army (ReviewBoards) approved the Army Board of Review for Eliminations’ recommendations to eliminate the applicant based on misconduct ant moral or professional dereliction, with an honorable characterization of service. 

32.The applicant’s DD Form 214 (Certificate of Release or Discharge from ActiveDuty) shows he was honorably discharged on 16 November 2012, after 13 years,
7 months, and 28 days of net active service this period, under the provisions of ArmyRegulation 600-8-24 (Officer Transfers and Discharges) due to unacceptable conduct.

33.The applicant’s available service and medical records from this period do not show:

.he was issued a permanent physical profile rating

.he suffered from a medical condition, physical or mental, that affected his abilityto perform the duties required by his MOS and/or grade or rendered him unfit formilitary service

.he was diagnosed with a medical condition that warranted his entry into the ArmyPhysical Disability Evaluation System (PDES)

.he was diagnosed with a condition that failed retention standards and/or wasunfitting

.none of his OERs, to include those subsequent to his referred OERs, dated


30 September 2010, 30 September 2011, and 9 March 2012, indicate medical impairment prevented reasonable performance of the duties required of the applicant's office, grade, rank, or rating 

34.An undated VA Rating Decision shows he was granted a service-connecteddisability for the following conditions effective 17 November 2012:

.hypertension with cardiomegaly, 30 percent

.anxiety disorder NOS and major depressive disorder, 30 percent

.right elbow strain, 10 percent

.degenerative arthritis, left knee, 10 percent

.degenerative arthritis, right knee, 10 percent

.dermatitis and pseudofolliculitis barbae, 10 percent

.degenerative arthritis, left shoulder, ring finger tendon injury status post avulsionfracture, left hand, proximal interphalangeal fracture, middle finger right hand,healed fifth metacarpal fracture, left hand, left ankle, calcaneal spur, and burnscar right arm, all rated 0 percent



35.A Psychiatry Outpatient Note, dated 8 January 2013, shows:

.he was seen in follow-up treatment for PTSD at the Tuskegee VA Medical Center

.this brief psychotherapy session included reevaluation and management ofmedication

.current status was he did have some PTSD from his 3 combat tours in Iraq; nopresently suicidal or on medication

.the PTSD symptoms he experiences are scarcely unusual for someone exposedto combat and did not make him unstable in any way and are more of a mildoccasional discomfort

.he was fully competent from a security clearance point of view



36.The applicant applied to the ABCMR in April 2014, requesting his discharge bevoided, reinstatement on active duty, promotion to the rank of major retroactive to 1December 2008 change in functional area, removal of the GOMOR, OERs, and DASEBproceedings from his OMPF.  After careful consideration of all the evidence, the Boardvoted on 7 April 2015 to deny the applicant’s requested relief determining the evidencepresented did not demonstrate the existence of a probable error or injustice.

37.In June 2015, the applicant again applied to the ABCMR, requestingreconsideration of his prior request, stating the Board previously failed to consider hisdiagnosis of PTSD.

38.In the adjudication of that 2015 application, and advisory opinion was provided bythe Army Review Boards Agency (ARBA) clinical psychologist on 11 October 2016,which states:

a.Military medical records indicated a behavioral health treatment history foralcohol abuse, an adjustment disorder with anxiety and depressed mood, PTSD, and depression.  The applicant engaged in several behavioral health services to include Psychology and Social Work individual and group treatments, medication management through Psychiatry, outpatient and inpatient services, Family Advocacy, ASAP, and off-post counseling.  It appears he was evaluated thoroughly, actively engaged in treatment, and endorsed symptoms appropriate to the given diagnoses for each treatment session.   

b.A VA letter dated 4 February 2015 indicated that a service connection foranxiety disorder NOS  with major depressive disorder was granted and the applicant was assigned a disability rating of 30 percent effective 17 November 2012.  A medical note dated 8 January 2013 indicated the applicant had an Axis I diagnosis of PTSD from a VA psychiatrist.  The provider included an opine that the applicant endorsed scarcely unusual PTSD symptoms for someone exposed to combat and determined the symptoms had not made him unstable in any way and that they were more a matter of mild occasional discomfort. 

c.The ARBA clinical psychologist was asked to determine if the condition of PTSDwas duly considered during the applicant’s military separation process.  This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA).  Based on thorough review of available medical records, there is no evidence that the diagnosis of depression or PTSD was misdiagnosed or that either condition mitigated his misconduct as the nature of these conditions are not reasonably related to the misconduct of domestic violence and engaging in adultery. This observation does not negate the applicant’s deployment history or in-service and post-service diagnoses of depression and post-traumatic stress; however, the presence of anxiety, depression, or PTSD during the time period of which he engaged in multiple infractions of misconduct, does not explain or directly mitigate his actions leading to an early separation from the Army.  The medical evidence that is available makes no indication that the applicant was misdiagnosed, that he was not responsible for his decisions and actions, or that he was considered psychologically unfit for duty; therefore, there is no basis for his contention that his transgressions would never have happened if he was treated for severe depression in the beginning.  A copy of the complete medical advisory was provided to the Board for their review and consideration. 

39.On 12 October 2016 the applicant was provided a copy of the advisory opinion andgiven an opportunity to submit comments, but did not respond.

40.On 6 December 2016, after careful consideration of all evidence, the Board againvoted to deny the requested relief, determining the evidence presented did notdemonstrate the existence of a probable error or injustice.

41.In conjunction with the applicant’s current request before the Board, submitted inFebruary 2019, another advisory opinion was provided by the ARBA clinicalpsychologist on 10 April 2019, which states:

a.A review of military records indicated the applicant’s early separation from





service was subsequent to a military investigation, dated 15 December 2008, which found he assaulted his spouse, committed adultery, admitted to committing adultery, and committed offenses that amounted to conduct unbecoming of an officer and a gentleman.  On 29 January 2009, the applicant received a GOMOR for the domestic assault and battery which entailed beating, choking, and threatening his wife; having ongoing multiple adulterous affairs with women; and for conduct unbecoming of an officer and a gentleman. b. Since his involuntary discharge in 2012, the applicant has sought reinstatement on active duty due to a misdiagnosis of PTSD and depression.  At the time of separation, he had 13 years and 8 months’ time in service during that period of service.  He contends that if he was diagnosed and properly treated when he initially sought help, he would still be on active duty.  He specifically contends that a misdiagnosis of severe depression, should have been diagnosed as PTSD. c. A review of military medical records indicated a behavioral health treatmenthistory for alcohol abuse, an adjustment disorder with anxiety and depressed mood, depression, and PTSD.  The applicant self- referred to ASAP and behavioral health treatment in June 2008 for drinking problems and at the recommendation of his wife. ASAP note dated 18 August 2008 indicated he reported symptoms of depression and increased alcohol use following his second deployment.  Behavioral health note dated 2 April 2009 indicated he was first diagnosed with PTSD in response to combat symptoms and disciplinary issues.  He endorsed adjustment difficulties following his return from Iraq to include symptoms of depression, low motivation, interpersonal conflict, and marital problems.  Post-service, a medical record dated 8 January 2013 indicated the examining psychiatrist stated, in part, his PTSD symptoms had not made the applicant unstable in any way and were more a matter of mild occasional discomfort. d. An oversight and not included in the prior medical advisory dated 11 October 2016, was a review of discharge summary from Red River Mental Hospital, a  state mental health facility.  This medical record indicated Mr. D was diagnosed with major depressive disorder, recurrent, severe.  It noted the applicant was inpatient 
hospitalized on 14 February 2009 following a suicide attempt in his wife’s garage in which he tried to hang myself.  He endorsed excessive drinking, depression since November 2008, irritability, poor concentration, poor sleep, isolation, helplessness, marital problems to include adultery and separation from his wife, and thoughts of suicide in which he purchased a rope and began the process to hang himself, but feared that he would go to hell and called his command.  He was discharged on  
24 February 2009 and was noted to be in stable condition with no suicidal or homicidal ideation.  Following his hospitalization, he regularly sought behavioral health and family advocacy services until September 2009. 

e.Medical notes from Marks Psychiatry and Forensic Services dated 30 April2012 and 17 May 2012 indicated the applicant had a diagnosis of major depression in remission, a history of alcohol abuse. 

f.Despite a review of additional medical documents from Red River MentalHospital and Marks Psychiatry and Forensic Services, there is no change to the original medical decision.  Based on the available information, there is no medical evidence that the diagnosis of depression or PTSD was misdiagnosed.  These diagnoses were founded; however, neither severe depression nor PTSD is considered mitigating or reasonably related to the applicant’s misconduct of domestic violence or adultery.  Specifically, the diagnoses of depression and PTSD do not mitigate and are not reasonably related to: 

1)Violation of Article 128- the applicant did commit assault by intentionallyinflicting bodily harm to his spouse in which he struck his spouse which was evidenced by pictures of bruises taken in the RACH emergency room. 

2)Violation of Article 134- the applicant did wrongfully have sexually activerelationships with other women while married which was evidenced by his own admission. 

3)Violation of Article 133- the applicant acted in a dishonorable manner andcompromised his character as an officer and gentleman as evidenced by violating Articles 128 and 134. 

g.Although the applicant was diagnosed with behavioral health conditions duringhis time in service and was granted a service-connected disability rating from the VA, there is a lack of evidence to support a causal relationship between his misconduct and the conditions of depression or PTSD.  There is also no evidence of misdiagnosis. This observation does not negate his service-connected diagnosis of PTSD; however, the VA conducts evaluations based on different standards and regulations.  The Army has neither the role nor the authority to compensate for progression or complications of service- connected conditions after separation.  That role and authority is granted by 
Congress to the VA, operating under a different set of laws. 

h.In summary, based on a thorough review of military medical records, to includea review of medical documentation from Red River Mental Hospital, the applicant’s medical conditions of PTSD or severe depression were correctly diagnosed in- service and were duly considered at the time of separation.  The applicant’s basis for separation was Unacceptable Conduct and was not due to a misdiagnosis of PTSD or severe depression.  A copy of the complete medical advisory was provided to the Board for their review and consideration. 

42.The applicant was provided a copy of this second advisory opinion on 15 April 2019and given an opportunity to submit comments.  The applicant responded twice, once on30 April 2019 and again on 26 May 2020.

43.In the applicant’s 30 April 2019 response he states:

a.The intent with his submitted request on 17 February 2019 was, to request anMEB/PEB review his case and that would be a better vehicle for evaluating his medical records, OERs, testimony of expert witnesses, Board of Inquiry minutes, and his rebuttal statements from a clinical aspect, due to the complexity of his case. 

b.The advisory opinion from the military psychiatrist, who has not personallyevaluated him, does not clinically give an alternate assessment of what caused his severe depression.  The analysis of his severe depression as developed by the Red River Treatment Team was his challenges endured during combat were the root cause. The affair, alcoholism, and acts of violence were coping mechanisms for the severe depression.  This is what he developed his recovery plan based on.  He additionally requested an extension of his case for 30 days. 





44.The applicant again responded on 26 May 2020.  In his response he provided a memorandum from Counsel, a new letter from Dr. M_____, dated 2 April 2020, and the previously provided and discussed documents of his Red River Discharge Summary, dated February 2009 and Standard Forms 600, dated August 2008 and February 2009.45.The letter from Dr. M____ of Marks Psychiatry, dated 2 April 2020 states:a.She evaluated the applicant for the purpose of determining whether or not he had a mental condition at the time of his Army separation in 2012 and if a mental condition was present, was the mental condition related to his service and the misconduct for which he was discharged. 







b. It was her opinion, within a reasonable degree of medical and psychiatric certainty, that beginning around 2007 during his second deployment to Iraq, that the applicant suffered from major depression.  His symptoms persisted after his return to Oklahoma and these symptoms took the form of irritability, depressed mood, inability to enjoy things, and insomnia.  Contemporaneous medical records show he was treated for depression. c. Irritability and emotional volatility are symptoms of depression that can result in aggressive behavior, especially in the context of a verbal altercation.  In the Board of Inquiry Proceedings, Dr. P____ opined the applicant’s behavior more likely stemmed from his personality and not PTSD because she did not see documentation of flashbacks.  Also, the ABCMR Record of Proceedings concluded there is no evidence to suggest he did not understand the difference between right or wrong or that he could not adhere to the right. d. Major depression and the emotional volatility and irritability that come with it does not require a person to lose the capacity to know right from wrong in relation to the act.  The disorder lowers the threshold for frustration tolerance, lowers an individual’s emotional/impulse control, and negatively distorts their perception of their circumstances.  When irritability is present, it makes them more prone to anger.  Therefore, it is plausible that a verbal altercation such as the one the applicant had with his wife could trigger aggression in the absence of any flashback or dissociative experiences.  It is also likely that his anhedonia, which is the inability to derive pleasure in anything, led to his risk-taking behavior of seeking a relationship outside of his marriage. e. Based on the timeline of his symptoms and the medical records, the applicant’s depression was related to his military service.  It is her opinion that the applicant suffered from major depression during his military service.  The depression was related to his military service and related to his misconduct from 2008. 

46.The memorandum from Counsel, dated 26 May 2020, states:

a.The advisory opinion makes no mention of the expert’s qualifications, name, or

level of expertise.  The opinion itself references evidence found within the applicant’s military and medical records.  The opinion primarily discusses the negative effects of his diagnosed behavioral health issues, but does not find that these behavioral health conditions relate to the misconduct in this case.  The applicant’s VA service files, and the medical opinion of Dr. M____ are filled with evidence of his behavioral health issues and diagnosis. b. The applicant believes there was a failure on the part of the U.S. Army to both investigate the circumstances of his behavioral health conditions and to accurately 








diagnose those conditions.  The failure of the Army to thoroughly investigate his behavioral health problems is prominent in the medical files and resulted in an erroneous discharge.  The Army decided his misconduct was criminal in nature but never investigated how the obvious behavioral health issues may be directly related to the conduct at issue. c. The Army had an opportunity to rigorously evaluate the applicant and should have conducted a preliminary MEB.  At the time of his administrative separation, the command completely ignored his behavioral health conditions.  The proper procedure would have been to do an MEB to find out whether he was fit or unfit for duty.  This could not have been done without investigating the underlying circumstances of the misconduct.  To properly determine whether or not the applicant should have been evaluated and found unfit for duty, he would have had to have been referred to U.S. Army medical personnel to investigate the conditions and diagnosis which made it difficult for him to continue in his military duties. d. Dr. M____ had the opportunity to do a thorough forensic evaluation of the applicant in this case.  She wrote a report in April 2020 detailing his behavioral health diagnosis and the cause of those mental health problems.  She clearly states in her report that “Based on the timeline of his symptoms and the medical records, his depression was related to his military service.  In conclusion, it is my opinion within a reasonable degree of medical and psychiatric certainty that [the applicant] suffered from major depression during his military service.  The depression was related to his military service and related to his misconduct from 2008.” e. The military expert in the advisory opinion does not rely on the medical evidence to make his determination.  He seems to rely on the misconduct as proof that there was no underlying behavioral health condition that was causing his conduct.  If this board were to require him to provide those medical files and documents that were never properly diagnosed by the command, they would be relieving the Army of its duty to properly investigate the cause of the applicant’s behavior and how the detrimental behavior affected his ability to continue military service.  The lack of evidence on the part of the original treating medical personnel is without merit.  The proper analysis should have been that without the proper records the original decision to not review his condition as a cause of his discharge is without merit. f. Generally, service connection may be granted for disability due to a disease orinjury that was incurred in or aggravated by service.  In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service establishes that the disease was incurred in service.  The applicant was on active duty status at the time that these incidents occurred.  At the time of the alleged misconduct, he was suffering from severe mental disease.  The injuries were caused by his military service and were related to the Army.  All the 






symptoms described by Dr. M____ in her analysis, including suicidal ideation, were present during his initial visit to the Fort Sill Behavioral Health Clinic in August 2008.  This was the optimal time when the applicant should have been sent to an isolated treatment facility such as Walter Reed or the Red River Mental Health Hospital.  If his command and the treatment facility had been proactive, then he may still have been on active duty today. g. Dr. M____ has opined, “It is my opinion within a reasonable degree of medical and psychiatric certainty that beginning around 2007 during his second deployment in Iraq, the applicant suffered from major depression.  His symptoms persisted after his return to Oklahoma, and these symptoms took the form of irritability, depressed mood, inability to enjoy things (anhedonia), and insomnia.  [The applicant] was treated for depression and the contemporaneous medical records document his complaints and treatment.” h. In this case the unit rushed to judgment.  The applicant has a unique, but honest perspective on his situation at the time and he states, “When you spend years taking on inadequacies outside your span of control it takes a toll.  My circumstances are unique only to me, which were a series of continuous events operating independently of each other.  An outline of those details is in the forensic analysis of Dr. M____.  However, I want to explain three crucial events by my chain of command along with the Fort Sill Behavioral Health Clinic that were counterproductive in my treatment.  From 2008 through 2009, my chain of command unintentionally deepened my depression while I was seeking treatment to get better.  The three contributing factors are lack of a thorough investigation, treatment interference, and no continuity of care.” i. The U.S. Army had an opportunity to investigate the applicant’s behavior through a thorough investigation.  Under Army regulations, when a Soldier has committed offenses under the UCMJ, the command has the authority and duty to investigate the circumstances of the offenses.  The investigation should be thorough.  The applicant remembers that “The investigating officer did not conduct a complete investigation.  A police report is not evidence.  Detective P____ mistakenly wrote he admitted to multiple affairs in his report after interviewing my wife and myself.  Coincidently, my wife’s information to the Lawton Police Department was regurgitating the false testimony of Ms. B____.  My command thought they had a pattern of my testimony with the Lawton Police Department and Ms. B____’s false statement, but it was not.  Outside of Ms. B____’s statement, there was not any other evidence.  This furthered his depression.  Ms. B____ recanted her accusation of multiple affairs in 2010.  My continuous written rebuttals were consistent but never taken seriously.  The investigating officer and my chain of command never heard my taped interview.  I requested it at my Board of Inquiry hearing however the authorities destroyed it.” 

j.In reviewing the medical records, Dr. M____ found that “[The applicant] receiveda GOMOR for his conduct related to infidelity and hitting his wife.  [The applicant] felt demoralized by the GOMOR because he felt some of the language in the documentation portrayed him as a man who victimized women.  [The applicant] contemplated suicide for a few weeks before nearly making an attempt to hang himself in February 2009.”  He was hospitalized and discharged to two months outpatient treatment.  Part of his treatment plan at Red River Mental Hospital was for him to volunteer to return to Iraq as a goodwill gesture to give back to the military.  He deployed to Iraq again in October 2010 and at the time of this deployment, he was aware of proceedings that were in motion to have him discharged from the military secondary to his GOMOR.  He involuntarily separated from the Army in November 2012. 

k.The command assumed that the misconduct that was investigated did not havea correlation to the mental health issues experienced by the applicant.  The failure to investigate was directly attributable to the command.  In this case, the unit originally had knowledge of the behavioral health issues.  They continued to prosecute the applicant, but did not review how either the misconduct or his duties were affected by his behavioral health. 

l.The applicant believes the command did not take his behavioral health issuesseriously and they became part of the problem.  His battalion commander unintentionally interfered with his treatment.  He underwent a complete assessment after nearly taking his life in 2009.  Despite significant documentation in his medical records, precious assessments never played a part.  This was primarily due to Lieutenant Colonel (LTC) T____ reporting the applicant had several affairs as a possible motive for wanting to commit suicide.  Of course, the Board of Inquiry acknowledged Ms. B____‘s affidavit recanting her story in 2012.  The Fort Sill Behavioral Health Clinic did not maintain a continuity of care.  This would alert them of his treatment plan developed from his severe depression.  Red River Mental Health Institute was trusted with providing him proper treatment, but his treatment plan never followed him to outpatient care.  Red River Mental Health Hospital was his recovery turning point because he was able to focus without distractions. 

m.The applicant requests immediate reinstatement on active duty with at least 90days of transition through the Army’s Wounded Warrior Program at Walter Reed Army Medical Center.  This would allow him to be fully evaluated mentally and physically for active duty in an isolated environment, which is the same process that should have happened over one decade ago in August 2008.  During this transition, the applicant requests the GOMOR ant two referred OERs be removed from his official file and he be reevaluated for the Fiscal Year 2008 Major Promotion Board.  This transition time will allow the applicant to resolve financial difficulties and reapply for a secret security clearance after a clean bill of mental and physical health.  If for any reason medical 
officials feel the applicant is unfit for duty during the 90-day treatment, an MEB would be called for.   

n.Due to his courageous undocumented success after his treatment at the RedRiver Mental Health Hospital, the applicant deserves this opportunity.  The applicant did everything right and has no control over the actions of others involved in his personal life and professional career. 

47.On 19 June 2020, a third advisory opinion was provided by the ARBA clinicalpsychologist, which states:

a.In May 2020, the applicant, through counsel, submitted a response to a 2019ARBA medical advisory, a second advisory subsequent to a court remand, requesting “immediate reinstatement to active duty,” specifically the Wounded Warriors Program, allowing the applicant to “be fully evaluated mentally and physically for active duty in an isolated environment” asserting this should have occurred in August 2008. Additionally, the applicant requested his GOMOR and deferred OERs be removed and he be re-evaluated for the FY08 MAJ Board.  The applicant noted when given a “clean bill” of health, i.e. fit for duty, he’d be able to resolve financial difficulties and obtain a security clearance; however, if determined to be unfit a MEB would “suffice.” 

b.The applicant included a March 2020 psychiatric evaluation in support of hisrequest. The evaluation was conducted based on the applicant’s self-selected 2008-2009 treatment records, self-report, and review of the psychiatrist’s prior two encounters with the applicant in 2012.  The evaluation is void of a review of Officer Evaluation Reports (OER), Service Schools, or other documents related to performance. The evaluation is void of a review of the letter of reprimand, investigative or police reports, or other documents related to misconduct. Accordingly, the evaluation contains information that is incongruent with other documentation.  The evaluator’s conclusion was the applicant had Major Depressive Disorder while in-service, related to combat, and the related symptoms contributed to his misconduct. 

c.In 2010, the applicant requested a GOMOR be moved to his restrictedOMPF. ARBA reviewed the January 2009 Letter of Reprimand (LOR) which indicated the applicant admitted to his wife he’d had an affair leading to a physical fight in which he “attacked her by hitting her with his hands, then with a plastic baton, on her face and head to the brink of unconsciousness and leaving her with bruises still visible 5 days later.  He reported when she fell, he dragged her across the floor. He choked her, scratching her on her neck. He verbally threatened her to the point that she feared for her life.”  The LOR indicated the applicant reported using an online site to meet other woman and had engaged in affairs with several women to include impregnating the wife of a deployed Soldier.  The LOR stated the applicant admitted being the father of twins from a June 2008 affair which also started online and had 
continued.  While initially telling the woman he was pending a divorce, after learning he was living with his wife they continued a daily sexual relationship noting sexual activity “after morning physical training, on lunch breaks, and anytime he did not have to be at work.” 

d.In support of his 2010 request, the applicant highlighted his OERs, after theLOR, top blocked him with ratings of Outstanding Performance, Best Qualified, and Must Promote.  A statement of support indicated the applicant’s “performance and conduct as an officer is nothing less than admirable, and that he is highly regarded by his Iraqi counterparts and superiors alike.” 

e.The Board felt there was insufficient evidence to show the intent of theGOMOR had been served; it “would not be in the best interest of the Army to transfer it at this time.”  His request was denied. 

f.In October 2012, the Deputy Assistant Secretary of the Army (DASA) approvedthe Board of Inquiry (BOI) and ARBA recommended separation; misconduct and moral and professional dereliction with an Honorable characterization. 

g.In 2014, the applicant applied to the ABCMR requesting his military records becorrected asserting his GOMOR “contains erroneous information and resulted in his unjust involuntary discharge.”  Additionally, the applicant asserted he was “misdiagnosed with severe depression when in fact he suffered from chronic post- traumatic stress disorder (PTSD)” and if he had “been properly diagnosed and properly treated, his misconduct would not have resulted.”  The applicant reiterated his success after the misconduct noting the three subsequent OERs, 1 October 2009 through  
9 March 2012, “show maximum ratings and recommend him for promotion to major.” 

h.The applicant included a February 2009 psychiatric discharge from RedRiver Mental Health hospital diagnosing MDD. 

i.The applicant included psychiatric consultation notes from April and May 2012,written by the same provider as the updated March 2020 evaluation, listing a History of MDD in Remission and Alcohol Abuse.  The applicant indicated he had been happily working as a nursing assistant part-time for four months; he stated he “felt needed” which he did not feel as a Soldier.  The provider indicated presenting symptoms surrounded a sense he “was just a number” and “dissatisfaction with current job” as a Soldier “doesn’t feel appreciated.”  The applicant reported “good” sleep, “ok” energy, and when bored “some” trouble concentrating.  The Mental Status Exam (MSE) was unremarkable. The provider stated whether or not the applicant had PTSD in the past was “unclear;” however it was “not a current issue.”  The May 2012 follow up note restated the applicant had a history of depression, but his “current state – general 
discontentment” was related to work dissatisfaction and determined treatment was not needed; he did not have a psychiatric condition requiring intervention. 

j.The applicant submitted a VA record reflecting a diagnosis of PTSD andservice connection for Anxiety Disorder NOS with Major Depressive Disorder. 

k.The Board denied his request; his discharge was proper and equitable andbehavioral health conditions were not contributory. 

l.In June 2015, the applicant requested reconsideration.  An ARBA ClinicalPsychologist completed an advisory opinion concluding his condition, MDD, was not misdiagnosed and “there is no basis for the applicant’s contention that his transgressions would never have happened if he was treated for severe depression in the beginning.”  His request was denied. 

m.In February 2019, ARBA received a court remand requesting ARBA considermental health records not previously reviewed.  The applicant requested ARBA direct his case to the MEB/PEB who could either “validate the Army’s current position,” recommend placement on the TDRL or PDRL, or reinstate him to active duty. 

n.In April 2019, the ARBA Clinical Psychologist completed a second advisoryafter reviewing additional documentation; however, concluded the applicant was not misdiagnosed and his misconduct was not mitigated by the diagnoses. The ARBA Senior Medical Advisor (SMA) reviewed both advisories and concurred. 

o.In response, the applicant requested the case be referred to the MEB/PEBasserting these Boards “would be a better vehicle in evaluating” documentation. The applicant asserted the ARBA advisory was flawed as the individual did not personally evaluate him and reiterated his assertion his misconduct was related to depression. 

p.The Interactive Personnel Electronic Records Management System(iPERMS) contains completed Service Schools in Field Artillery Officer Basic Course, Field Artillery Captains’ Career Course, and Staff Process Course of the Combined Arms and Services Staff School from 1999 to 2003. 

q.The applicant’s OERs from 2000 through May 2008 reflect successfulperformance and ratings.  The May 2008 to March 2009 OER addresses the GOMOR for misconduct rating him as Unsatisfactory and not recommended for promotion. 
r.The April to September 2009 OER indicated the applicant had “exemplary workdisplays exceptional initiative,” was holding multiple jobs to include assistant operations 
officer while still teaching, was “invaluable to students,” executed tasks “flawless,” and assisted with rewriting BOLC classes.  The applicant was recommended for Command and General Staff College, in residence. 

s.The October 2009 to September 2010 OER reflected OutstandingPerformance, Best Qualified, and Must Promote.  His rater stated the applicant’s “performance is in the top quarter of all combat Arms Officers that I have observed within the last 21 years” as he could complete a “variety of complex and challenging tasks” still accomplishing them “to the highest standard.”  Moreover, “His efforts were key to the success of increase in combat effectiveness as they provided a safer, more secure environment…”  The senior rater indicated the applicant was in the “top ten percent of all company grade officers I have served with over the past 27 years … functioned at the senior Major level with professional maturity … always demonstrated the insight, integrity, vision, moral courage, and selflessness we look for … among the best we have and has shown an outstanding adaptability through his work…” 

t.The October 2010 to September 2011 OER reflected OutstandingPerformance, Best Qualified, and Must Promote indicating he was a “gifted leader,” could “always be counted on to produce excellent results,” “flawlessly supervised … provided outstanding analysis,” and emphasized promotion to Major and ILE, in residence, as “He is a future BN Commander.” 

u.The October 2011 to March 2012 OER reflected Outstanding Performance,Best Qualified, and Must Promote stating the applicant was “number two of five Captains that I rate,” “critical to the success of that mission,” “master of managing several competing lines,” “hand-picked,” “smart and tenacious officer who has almost single handedly helped revise the Brigade’s T/M certification program as well as train the rest of the staff,” and should be promoted “immediately and place in a demanding armor battalion S3 or XO position.” 

v.The DOD electronic medical record (AHLTA) indicates the applicant’s firstbehavioral health contact was in August 2008.  At that time his wife and he reported increased drinking, irritability, discomfort in crowds, lack of motivation, impatience, fatigue, and difficulty relaxing.  His wife added when the applicant was intoxicated, he made suicidal statements.  The applicant was diagnosed with Alcohol Abuse with further evaluation for Depressive Disorder NOS.  In follow up, the applicant reported depressive symptoms were secondary to dissatisfaction with his new role as an Instructor; “feeling of being somewhat unimportant and limited ability to access quality resources to do his current duty…”  The applicant then joined a PI project indicating it instilled a sense of importance and engaging in a worthwhile task leading to symptom resolution; he reported sleeping well, exercising, and drinking less.  The applicant was diagnosed with an Adjustment Disorder with Depressed Mood and Alcohol Abuse in Remission. 

w.In October 2008, the applicant requested marital therapy noting difficultiessince he had an affair resulting in pregnancy and an abortion.  He noted his wife informed him she never felt he loved her and he “validated” some of these feelings. The following month, Command referred him after a domestic violence incident. The applicant “complains of increased drinking, increased irritability, pt. is also reporting struggling to find a sense of purpose in his current positions.”  During therapy, he stated “he had not been honest … had been having an affair and he reports that there were altercations that ended up with him staying at his old house;” a no contact order was in place.  The applicant reported his wife was fearful of him leading her to stay at an unknown shelter rather than the home he left.  The Family Advocacy Program (FAP) became involved and contacted Command who believed the applicant’s wife initiated the argument; however, acknowledged the applicant’s misconduct during the altercation. Command reported due to the events, the applicant’s promotion was on hold and he was being referred to the Army Substance Abuse Program (ASAP). Command indicated the applicant had been successfully involved and discharged from ASAP in the past.  Due to the period of service, FAP records were primarily contained in a hard file; there is limited information on the assessment and treatment. Additionally, ASAP records were also maintained in a hard file; the contents of the assessment and treatment are unknown.  However, records do indicate he was attending ASAP with an Alcohol Abuse diagnosis listed. 

x.In December 2008, the applicant reported his attitude changed afterdeployment “because of his frustrations with those experiences.”  A post-deployment screening indicated the applicant reported “mild depression, anger.”  The applicant was diagnosed with Anxiety Disorder NOS. 

y.In January 2009, there was a second domestic incident.  The applicantreported his wife asked him to come to their home which resulted in an altercation and she threw hot water on him.  The applicant did not report the incident; however, while at a medical appointment, the provider noticed it.  While the applicant was the victim in this incident, the provider noted he had violated the no contact and protective order. That same month, he saw psychiatry and was diagnosed with an Adjustment Disorder and prescribed an antidepressant.  At the end of the month, he reported doing well. 

z.In February 2009, the applicant rated himself as experiencing only mildirritability and difficulty related to marital, legal, and occupational stressors. He was later taken to the ER after an attempted suicide.  The applicant reported the suicide attempt was in reaction to his letter of reprimand; the way it portrayed him, embarrassment, and concern for his future in the Army.  The provider indicated “Service member denies a lot of PTSD-type symptoms … does remember being somewhat depressed with the loss of soldiers and was not able to make a connection with his soldiers.”  The applicant was subsequently hospitalized at Red River Mental 
Health hospital and discharged with a diagnosis of Major Depressive Disorder (MDD); at the time of hospitalization the applicant had sufficient depressive symptoms with impairment in his ability to manage stressors to the extent he was suicidal. Of note, a diagnosis of MDD, in and of itself, does not fail medical retention standards; the expectation is with treatment individuals are able to improve and are given this opportunity before determining they are permanently unfit. At follow up, he reiterated his suicide attempt was related to his “pending a letter of reprimand from the CG and he could not face what other people thought or the ramifications this would have.” He also discussed how a difficult childhood contributed to a sense of failure creating a sensitivity; any indication of failure triggered mood and behavioral symptoms. The applicant verified the adultery and domestic assault feeling divorce was the best recourse. Command reported prior to the suicide attempt, and since then, there “were no behavior problems noted on the job.” The applicant’s treatment surrounded coping with his legal issues, addressing his martial relationship, and understanding how his childhood experiences resulted in poor self-esteem and chronic feelings of failure. By the end of February, the applicant reported socializing, engaging in enjoyed activities, and actively participating in his legal defense; there was minimal symptoms or impairment. 

    aa. In March 2009, the applicant reported “feeling pretty good,” other than a sense of “humiliation” about the UCMJ action, and was “seeing himself handing the situation.”  He rated his anxiety and depression as mild stating he “feels good” and “reports and appears to be coping well at this time;” his diagnosis was an Adjustment Disorder.  Later in the month, the provider discussed maladaptive relational patterns; however, “reports that he is doing well at this time,” was going out to dinner with his wife, and had an unremarkable MSE.  Treatment continued to focus on identifying and overcoming childhood experiences and relational difficulties; treatment was not trauma based or related to MDD. 

    bb.  In April 2009, the applicant reported marital issues began after his deployment. Additionally, he felt he sought an adrenaline rush post-deployment. The provider diagnosed PTSD.  However, documentation is void of criteria to include clinically significant impairment; there is no substantiation for the diagnosis. The applicant continued to report “he is doing well.”  Moreover, he noted he “always received good ratings and had never had any disciplinary action in the past.”  In mid-April, the applicant indicated he was going to be retained and was “feeling quite happy pleased.”  Throughout April, he reported doing well and appointments were to “provide support” as he was “in good spirits and has a healthy outlook.” 

cc.In May 2009, the applicant reported treatment was helpful as it allowed himto “engage in extensive self-examination and exploration …working and developing 
his self…” In mid-May, he reiterated he had “No anxiety and no depression;” his MSE was unremarkable. 

dd.In August 2009, the applicant was preparing for PCS, volunteering todeploy, held a part-time job on the weekends, and was working on his marriage. In September, he was cleared to PCS and later to deploy. 

    ee.  In April 2011, the applicant had a redeployment screen denying difficulties; “SM reported no present concerns.”  In June 2011, he sought out behavioral health due to pending administrative action and related stress.  He did not return. 

    ff.  In May 2012, he requested an off-post referral for therapy; “Pt states currently he is experiencing some depression due to occupational stressors.”  His MSE was unremarkable and “currently stable.”  He was cleared for an off-post referral as he was not a high risk Soldier or diagnosed with conditions mandating on-post treatment.  In his final appointment, out-processing the Army, the applicant referenced the previously referred to April and May 2012 consultation notes which reflected a history of MDD, in Remission; he did not hold a psychiatric diagnosis at the time of separation. 

    gg.  VA electronic medical records (JLV) indicate the applicant is 30 percent service connected for Anxiety Disorder NOS with MDD. 

    hh.  In January 2013, the applicant sought out approval for a Security Clearance. The provider noted the applicant had “some PTSD” symptoms;” however was not in treatment as he was “doing very well … has made an excellent adjustment to civilian life.” Although the provider indicated “some” PTSD symptoms, it was determined any symptoms had not “made him unstable in any way and are more a matter of mild occasional discomfort.”  Although this negates a PTSD diagnosis, as it lacks criteria to include clinically significant impairment, the provider listed PTSD. 

ii.In February 2019, the applicant returned requesting an “independentpsychological evaluation for the Army Board of Medical Examiners related to medical retirement.”  He reported a history of depression and anxiety with recent medication management.  The provider explained this was not a service the VA could provide.  The note lists a diagnosis of Anxiety Disorder NOS; this is more likely than not carried over from his service connected list as the note is void of substantiation. 

    jj.  The ARBA clinic psychologist was asked to determine if the applicant had a behavioral health condition in service that failed retention standards.  This opinion is based on the information provided by the Board, DOD electronic medical record (AHLTA), the Joint Legacy Viewer (JLV), and personnel records.  Based on a thorough review of available records, the applicant met medical retention standards.  The applicant initially went to behavioral health in 2008 reporting anxiety, depression, and 
alcohol misuse.  During follow up, he clarified occupational dissatisfaction drove symptoms and had resolved after identifying work activities that offered a sense of purpose.  From 2008 until his separation, treatment surrounded occupational dissatisfaction, relational difficulties, legal stressors, and reactivity to a sense of failure or loss of purpose.  While he held a variety of diagnoses over the course of care, an adjustment disorder best fits the applicant’s symptom description, presentation, and lack of significant impairment.  Even if the other diagnoses are taken at face value, at no point did the applicant’s symptoms, presentation, or functioning reflect a Soldier who was psychiatrically unfit.  Rather, the applicant consistently reported mild or no symptoms, provided a 2012 off-post consultation which was void of an active psychiatric diagnosis, and exhibited exemplary performance.  In summary, while the applicant received behavioral health service in service, he continued to meet medical retention standards. 





48.On 23 June 2020, the applicant was provided a copy of the 19 June 2020 advisory opinion and given an opportunity to provide comments.  On 30 August 2020, Counsel and the applicant responded, providing a written rebuttal by each and multiple supporting documents, all of which have been provided to the Board for review, including clinical notes by Dr. G____, a PCL-5 with LEC-5 and Criterion A document, Tactical Design information paper, and Direct –Effect Solutions, LLC information document.49.In his rebuttal, Counsel states:a.Most of the advisory opinion relates the history of the present case and only 

briefly concludes with, “While he held a variety of diagnoses over the course of care, and adjustment disorder best fits the applicant’s symptom description, presentation, and lack of significant impairment.  Even if the other diagnoses are taken at face value, at no point did the applicant’s symptoms, presentation, or functioning reflect a Soldier who was psychiatrically unfit.  Rather, the applicant consistently reported mild or no symptoms, provided a 2012 off post consultation which was void of an active psychiatric diagnosis, and exhibited exemplary performance.  In summary, while the applicant received behavioral health service in service, he continued to meet medical retention standards.”  The opinion offers absolutely no response to the previously submitted response by the applicant to the April 2020 advisory opinion.  Once again, the opinion seems to rely on the history of the case as a diagnosis of adjustment disorder.  This has been wholly refuted by the applicant’s subsequent medical history.b.The opinion suggests the applicant’s diagnosis of adjustment disorder was notrelated to his combat trauma prior to his PCS to Fort Sill, OK.  This does not negate Dr. M____’s 2020 assessment of his service-connected transgressions, ultimately justifying his involuntary separation from active duty.  Numerous assessments performed by 
board analysts and outside board advisors continuously overlook the Red River Mental Health diagnosis and Dr. M____'’ initial 2012 assessment, both conducted during his military service.  Furthermore, it was military medical officials who transferred the applicant to the Red River Mental Health Hospital.  Even though the military is not bound by a civilian diagnosis, the Board should take it into consideration as it was a military psychologist who recommended Red River Mental Health Hospital.  The advisory opinion should take those documents into account.  It is immaterial where a patient receives treatment or advice if the accredited individuals follow the code of conduct and do not operate outside the scope of their profession. 

c.The command should not have interfered with the applicant’s treatment.  Heshould have been directed to Walter Reed rather than Red River Mental Health Hospital for service-connected mental issues.  This is precisely why is treatment plan is not documented.  The command and Fort Sill Behavioral Health Clinic had several opportunities to get it right.  The 15-6 investigation did acknowledge the applicant was receiving mental health treatment, but the command never considered any of his experiences in combat contributed to his unethical behavior.  The command focused more on providing inaccurate information rather than receive information from the applicant’s providers and/or requesting an MEB.   

d.As new circumstances arose, they should have been vetted through the 15-6investigating officer, not directly through the command, eliminating bias.  There is no evidence that the 15-6 investigating officer interviewed the applicant’s accuser, but the applicant’s wife told the investigating officer she did not personally have knowledge of the applicant having multiple affairs.  Even after she wrote the affidavit, the investigating officer should have interviewed Ms. B____ himself.  This channels information through one source.  Based on a complete investigation, the command should have just put the facts in the letter of reprimand.  The applicant would have been fine with that.  The letter of reprimand should have been filed locally, which would have met the command’s obligation in addressing the intolerance of unethical behavior and acknowledging his behavior was service-connected.  The applicant could have continued his treatment and military career. 

e.The applicant requests that he be given full reinstatement on active duty, adischarge upgrade, medical retirement, or regular military retirement. 

50.In the applicant’s rebuttal, he states:

a.It is illogical to conclude an adjustment disorder diminishes his misconduct asserviced connected.  The medical advisor’s opinion of adjustment disorder is part of a bigger picture.  The opinion never pinpointed a possible origin because he or she cannot with the given information.  Page 1, paragraph 2 of the 19 June advisory opinion states in reference to the forensic psychiatric analysis performed by Dr. 
M____: “The evaluation was conducted based on the applicant’s self-selected 2008-2009 treatment records, self- report, and review of the psychiatrist’s prior two encounters with the applicant in 2012. The evaluation is void of a review of Officer Evaluation Reports (OER), Service Schools, or other documents related to performance. The evaluation is void of a review of the letter of reprimand, investigative or police reports, or other documents related to misconduct.”  This statement is false. The documentation he submitted to Dr. M____ for analysis excluding medical records included: 















•minutes from the BOI•Letter of Reprimand•OERs from 2009-2012•Fort Sill Oklahoma Police Report•15-6 Investigation•accuser’s Sworn Statementb.Dr. G____’s diagnosis was not included in her forensic diagnosis but was mentioned by Dr. M____ and the 19 June 2020 advisory opinion.  He was able to retrieve his medical evaluation after the release of this 19 June 2020 advisory opinion and included a copy of it with his supporting documents. 

c.Page 4, paragraph 9 of the 19 June advisory opinion: “The DOD electronicmedical record (AHLTA) indicates the applicant’s first behavioral health contact was in August 2008. At that time his wife and he reported increased drinking, irritability, discomfort in crowds, lack of motivation, impatience, fatigue, and difficulty relaxing. His wife added when the applicant was intoxicated, he made suicidal statements. The applicant was diagnosed with Alcohol Abuse with further evaluation for Depressive Disorder NOS. In follow up, the applicant reported depressive symptoms were secondary to dissatisfaction with his new role as an Instructor; “feeling of being somewhat unimportant and limited ability to access quality resources to do his current duty…” The applicant then joined a PI project indicating it instilled a sense of importance and engaging in a worthwhile task leading to symptom resolution; he reported sleeping well, exercising, and drinking less. The applicant was diagnosed with an Adjustment Disorder with Depressed Mood and Alcohol Abuse in Remission.” 
The first behavioral health contact also documents: “Service member reports two previous deployments to Iraq, first from 2004-2005 and second from 2006-2007…SM stated he wanted to get help several months ago, but he never followed through.”  As stated, his problems started immediately after his second deployment before his transition to Fort Sill.  If he suffered from adjustment from not adapting to standardized military life circumstances, then he would not have the 17 years of military service with accolades of accomplishments. 

d.The overall analysis by the medical advisor is misleading simply because




assessments within his military medical records lack constructed responses.  He only answered questions he was asked.  There is a difference between “How was your day?” verses “Why did you join the Army?”  The lack of constructed responses focused on current life circumstances that revolved around work and marriage.  Reviewed repeated patterns of answers of questions surrounding his current environment, it is easy for anyone to conclude he suffered from an adjustment disorder.  In addition, he never malingered from duty because he wanted to get better. Most of his follow-ups were promising simply because he was trained to interview well.  This was from key leadership engagements in Iraq.  After so many periodic assessments, he learned to mask his depression.  It was his wife encouraging him to get help, not the command. His misconduct started at home and not at work.  During the BOI Inquiry Dr. P____ was asked her opinion on his diagnosis.  She stated she could not give an assessment because she never treated him personally but she opined depression from childhood events.  The stark contrast is treatment from the civilian providers allowed constructive responses in order to have a complete picture.  The one opportunity he had in giving a constructed response was given inconsequently by his command with false information. e. In his 14 February 2009 Mental Health Assessment for attempted suicide Dr. D____ states: “Details of the event:  Service member has had a chronic history of behavior and relationship problems over the last several months and during this time there is the issue of domestic violence and now a no contact order between him and his spouse… Around the same time he was given a letter of reprimand by the general of the post due to his behavior.  This seems to have been a critical moment in his recent mental health decline as he reports that as he read the letter he decided that this person that they were describing on paper really was not who he wanted to be.” RISK ASSESSMENT:  Service members at high risk to harm himself and In the Imminent future as his time In the military Is coming to an end and or likely is coming to an end. When asked If he could kill himself again what he said "I don't know" his personality and view of himself his Informed around the military and yet his Impulse control and judgment has been quite poor as the unit reports that he said several extramarital relationships In the domestic assault with his wife as other Issues as well that the behavioral problems and yet when he goes to work they say he Is quite effective service loss of this note to her position as an officer and over for 17 years has damaged his persons self-concept. In addition to this his loss of focus progressive depression his alcohol consumption and his distorted thinking make his likelihood of acting quite high.” f. The only opportunity he had in delivering a constructed response on theaffair was during the BOI during a cross examination: “It was not really what my wife not giving what I needed it was me giving myself what I needed. My love for my wife never changed. My love for the Army never changed. It was taken that time. To continue to lead the Soldiers, I did not have time for myself to face”.  He 
did not have a psychiatrist or psychologist on his behalf to advise the board members on this statement.  At this juncture in the applicant’s rebuttal, he included an imbedded chart depicting a timeline of events that coincide with Dr. M____’s analysis.  He states his challenges started immediately after redeployment and before he arrived at Fort Sill.  Job satisfaction at Fort Sill, was a coping mechanism: 

g.He then details what he deems are independent decisions made at theOperation, Division and Army Headquarters Levels.  After his branch transfer, leadership promised a transition course that never happened.  Several months later, training took priority over him attending the Commander and First Sergeant Course.  Due to a surplus of captains in Europe, his battalion commander decided he would take a follow on command during the deployment.  This was to give another captain command time for the promotion board.  After arriving in Kuwait, Theater Command dismantled their brigade combat team and attached them to other U.S. forces.  Did his Branch Manager know his leadership would deny him the Commanders and First Sergeant and the Armor Transition Course? No.  Did his battalion commander know he would take command of two of the most hostile providences in Iraq? No.  Did the brigade commander know dismantling his forces was a Theater Command decision prior to arriving in Kuwait? No.  As a result, he had a 15-6 investigation soon after he took my second command in Ramadi.  One of his platoons fired upon a friendly Marine convoy.  The investigation determined that lacking knowledge of Marine vehicles greatly contributed to the force on force incident.  The first constraint was they never knew they would co-op with Marines prior to deploying.  The second is he never trained that platoon before the deployment, but ultimately was responsible.  This is just one of several incidents in which every tiered independent decision had the same effect on his stress.  Several of these details are in his rebuttals and testimony to the 2012 Board of Inquiry. 

h.Page 5, number 9, paragraph 5 of the 19 June advisory opinion states:“Of note, a diagnosis of MDD, in and of itself, does not fail medical retention standards; the expectation is with treatment individuals are able to improve and are given this opportunity before determining they are permanently unfit.”  His “fit for duty” analysis was due to his hard work and dedication through a treatment plan he developed during his time in Red River Mental Health Hospital.  Despite his medical records excluding his Red River treatment all together, portions of my treatment plan are mentioned in my medical records.  A detailed outline of his progression is in his relief request to the ARBA in 2010 and the board of inquiry in 2012.  He managed his treatment in three stages. 

i.Stage 1 was as follows:  As mentioned in the page 6, number 9, Paragraph 10Advisory Opinion: “In August 2009, the applicant was preparing for PCS, volunteering to deploy, held a part-time job on the weekends, and was working on his marriage.  In 
September, he was cleared to PCS and later to deploy.”  He acquired a part-time job assisting three male clients suffering from retardation, brain injury and autism.  He would bathe them, change their diapers, bathe and feed them.  He was physically able to see what he did made a difference, rebuilding my self-worth. 

j.Stage 2 was as follows:  His removal as an instructor demonstrated the currentcommand lost trust in him.  He needed a fresh start and had unfinished business in Iraq.  he volunteered for his third deployment as a military advisor for the Iraqi Army and Police.  he ensured my soldiers, those he lost during my command did not die in vain, helping to provide stability.  He advised Iraq commanders on operations and trained Iraqi soldiers and police officers on preventive maintenance and crater analysis.  His training doctrine became the brigade standard and he provided a copy of it in his supporting documents. 

k.Stage 3 was as follows:  Upon redeploying, he became a trainer, mentor,coach at Fort Stewart, Georgia.  Unlike being an instructor at Fort Sill, he was able to prepare deploying Army National Guard and U.S. Army Reserve Units with realistic and relevant scenarios.  He developed “Tactical Design”, a revised targeting concept deign to help tactical level commanders identify changes and apply appropriate resources in a rapidly changing operational environment, a copy of which has been provided for the Board. 

l.Page 5, number 9, paragraph 5 of the 19 June advisory opinion states: “Ofnote, a diagnosis of MDD, in and of itself, does not fail medical retention standards; the expectation is with treatment individuals are able to improve and are given this opportunity before determining they are permanently unfit.”  Today, he still understands his triggers.  After he was involuntary separated, he took a management position with Home Depot, who fired me within eight months.  He hated the way they treated one of his subordinates.  Pressured by upper management, he fired him for a documented infraction despite the circumstances.  The thought process was “we have several applicants who wants this position so replacing him is not an issue.”  There was no consideration he had a family or the high cost of turnover.  He walked off the job the next day.  He found myself dealing with the same stress I experienced on active duty.  He got back into service by working for the State of Georgia in Education.  He also developed my Human Resource Management Company “DIRECT-EFFECT Solutions LLC”.  He uses the Tactical Design theory in helping managers make informed decisions in taking care of their employees by focusing on behavior, not unconscious bias.  He included an exhibit documenting his human resources management company. 

j.In summary, a large portion of the advisory opinion is baseless simply because ofthe command’s interference in his treatment.  For the past 6 years, board analysts continue disregarding civilian evaluations simply because specific qualifying criteria is 
not in my military medical records.  This is precisely why he filed through the Federal Court system.  It will NEVER be in his military medical records.  However, most of his civilian medical evaluations and opinions were on active duty. The baseline origin became non-combat related when his command inconsequently gave false information to his medical providers.  There was never a need to pursue combat-related issues and any review of the same would render the same results.  This is comparable to the social injustice happening in America today.  When an unarmed African American male is shot, there are attempts to defame his character in order to justify the shooting verses understanding what circumstances lead to the shooting taking place.  You can’t see the forest through the trees no matter how much you refocus your lenses.  It’s simple.  It wasn’t until he was in an isolated environment (at Red River) that he was given the time to focus on his problems, away from the Army, family and friends.  Red River’s diagnosis of MDD focused entirely on his combat experiences and his treatment plan focused entirely on combat experiences. 

51.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service.  The Army disabilityrating is to compensate the individual for the loss of a military career.  The VA does nothave authority or responsibility for determining physical fitness for military service.  TheVA may compensate the individual for loss of civilian employability.

52.Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation fordisabilities which were incurred in or aggravated by active military service.   However,an award of a VA rating does not establish an error or injustice on the part of the Army.

53.Title 38, CFR, Part IV is the VA’s schedule for rating disabilities.  The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected after discharge.  As a result, the VA, operating under different policies, mayaward a disability rating where the Army did not find the member to be unfit to performhis duties.  Unlike the Army, the VA can evaluate a veteran throughout his or herlifetime, adjusting the percentage of disability based upon that agency's examinationsand findings.

BOARD DISCUSSION: 

1.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.

2.The Board reviewed the applicant’s contentions, the previous decisions in this case,the 1 February 2019 remand order issued by the United States Court of Federal Claims,the applicant’s filings in the same Court, and the evidence of record, including theadditional medical evidence submitted by the applicant. The Board found the applicanthas failed to demonstrate by a preponderance of evidence an error or injustice
warranting the requested relief, specifically: referral of his records to a Medical Evaluation Board (MEB) / Physical Evaluation Board (PEB) for consideration of whether his mental health conditions were unfitting warranting placement on the Temporary Disability Retired List (TDRL) or Permanent Disability Retired List (PDRL); reinstatement on active duty; removal from his records of a General Officer Memorandum of Reprimand (GOMOR) and two referred Officer Evaluation Reports (OERs); and retroactive consideration for promotion by a Fiscal Year (FY) 2008 Major (MAJ) Promotion Board.    

3.The Board determined that the greater weight of the evidence reflects that theapplicant met medical retention standards at the time of service separation and wasproperly discharged from service for misconduct. After considering all the evidence,including the advisory opinions from the Army Review Boards Agency (ARBA) medicalofficers and the medical opinions and treatment records submitted by the applicant, theBoard determined that the applicant has failed to demonstrate by a preponderance ofthe evidenced that his overall physical condition at the time of discharge warranted afinding that he failed medical retention standards / was unfit for military service. TheBoard further found no error in the issuance of the GOMOR and referred OERS –issued for domestic assault, adultery / multiple ongoing adulterous affairs, and failure tomeet height and weight standards. The Board noted that the applicant was treated formental health conditions during service, but found that the applicant has notdemonstrated by a preponderance of the evidence that his underlying mental healthconditions were mitigating to this misconduct / substandard performance. The Boardfound that the applicant’s medical conditions of PTSD and depression were correctlydiagnosed in-service and duly considered in the issuance of the GOMOR and referredOERs as well as during his involuntary separation from service. Consequently, theBoard must deny the relief that the applicant has requested.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 


X 

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 


REFERENCES: 

1.Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departmentswith authority to retire or discharge a member if they find the member unfit to performmilitary duties because of physical disability.  The U.S. Army Physical Disability Agencyis responsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40(Physical Evaluation for Retention, Retirement, or Separation).

a.Soldiers are referred to the disability system when they no longer meet medicalretention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 

b.The disability evaluation assessment process involves two distinct stages: theMEB and PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 

c.The mere presence of a medical impairment does not in and of itself justify afinding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 

2.Army Regulation 635-40 establishes the Army Disability Evaluation System and setsforth policies, responsibilities, and procedures that apply in determining whether aSoldier is unfit because of physical disability to reasonably perform the duties of hisoffice, grade, rank, or rating.  Only the unfitting conditions or defects and those whichcontribute to unfitness will be considered in arriving at the rated degree of incapacitywarranting retirement or separation for disability.

a.Paragraph 3-2 states disability compensation is not an entitlement acquired byreason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 

b.Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfittingdisabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: 
 
  (1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 
 
  (2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 
 
3.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 
 
4.  Army Regulation 600-37 (Unfavorable Information) provides: 
 
     a.  An administrative memorandum of reprimand may be issued by an individual’s commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made. 
 
     b.  A General Officer Memorandum of Reprimand (GOMOR) may be filed in a Soldier’s Official Military Personnel File (OMPF) only upon the order of a general officer-level authority and is to be filed in the performance folder.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the GOMOR is to be filed in the OMPF, the recipient’s submissions are to be attached.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  The burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 
 
5.  Army Regulation 623-3 (Evaluation reporting System) establishes the policies and procedures for preparing, processing and using the Officer Evaluation Report (OER).   
 
     a.  It provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating 
officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.   

b.Accordingly, to justify deletion or amendment of a report, the applicant mustproduce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 

6.Army Regulation 600-8-24 (Officer Transfers and Discharges) serves as theauthority for the transfer and discharge of Army officer personnel.  It provides thatelimination action may be or will be initiated for misconduct, moral or professionaldereliction, acts of personal misconduct, conduct unbecoming an officer, and adverseinformation filed in the OMPF.

7.Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disabilityresulting from personal injury suffered or disease contracted in line of duty, or foraggravation of a preexisting injury suffered or disease contracted in line of duty, in theactive military, naval, or air service, during a period of war, the United States will pay toany veteran thus disabled and who was discharged or released under conditions otherthan dishonorable from the period of service in which said injury or disease wasincurred, or preexisting injury or disease was aggravated, compensation as provided inthis subchapter, but no compensation shall be paid if the disability is a result of theveteran's own willful misconduct or abuse of alcohol or drugs.

8.Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – BasicEntitlement) states for disability resulting from personal injury suffered or diseasecontracted in line of duty, or for aggravation of a preexisting injury suffered or diseasecontracted in line of duty, in the active military, naval, or air service, during other than aperiod of war, the United States will pay to any veteran thus disabled and who wasdischarged or released under conditions other than dishonorable from the period ofservice in which said injury or disease was incurred, or preexisting injury or disease wasaggravated, compensation as provided in this subchapter, but no compensation shall bepaid if the disability is a result of the veteran's own willful misconduct or abuse of alcoholor drugs.

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