DEPARTMENT OF THE ARMY ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RBA 20 April 2023 MEMORANDUM FOR Case Management Division, Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings in which the Board recommended granting the applicant’s request. I have reviewed the evidence presented, findings, conclusions, and Board member recommendations. Based upon the misconduct involved and the findings of the medical advisor, I find insufficient evidence of an error or injustice. Therefore, I overturn the board’s recommendation. The application submitted by the individual concerned is denied. BY ORDER OF THE SECRETARY OF THE ARMY: 04/20/2023 Encl Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 September 2021 DOCKET NUMBER: AR20210008853 APPLICANT REQUESTS: through counsel: * removal of the general officer memorandum of reprimand (GOMOR), 23 January 2017, from his Army Military Human Resource Record (AMHRR) * removal of the referred DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1- CW2) Officer Evaluation Report (OER)) covering the period 31 October 2016 through 30 October 2017 from his AMHRR * retroactive promotion to major (MAJ)/O-4 with all back pay and allowances, and any other legal or equitable relief deemed appropriate by the Board * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 October 2019 to show his rank/grade as MAJ/O-4 * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Declaration in Support, 12 November 2020 * Enclosure 1 – GOMOR, 23 January 2017 * Enclosure 2 – OER, 31 October 2016-3 October 2017 * Enclosure 3 – DD Form 214 * Enclosure 4 – Officer Record Brief, 24 September 2018 * Enclosure 5 – Deployment Orders, 8 January 2010 * Enclosure 6 – Photograph of Damage to Vehicle, 20 March 2010 * Enclosure 7 –Narrative Statement, 29 October 2020 * Enclosure 8 – Two Eyewitness Statements, 2018 * Enclosure 9 – Combat Awards, 2010 and 2013 * Enclosure 10 – Excerpts from Medical Records * Enclosure 11 – Six OERs * Enclosure 12 – 81 Character-Reference Letters * Enclosure 13 – GOMOR Filing Determination, 3 April 2017 * Enclosure 14 – Board of Inquiry (BOI) Materials, 6 November 2017 * Superintendent, U.S. Military Academy Memorandum to Applicant (Initiation of Elimination), 9 May 2017 * Applicant's Memorandum for Superintendent, U.S. Military Academy (Acknowledgment of Receipt of Notification of Initiation of Elimination, Applicant), 10 May 2017 * DA Form 1574-2 (Report of Proceedings by Board of Officers), 25 September 2017 * Enclosure 15 – Promotion Selection and Removal * Fiscal Year 2016 (FY16), MAJ, Army Competitive Categories, Selection Board Results, 10 January 2017 * Secretary of the Army Memorandum for Deputy Chief of Staff, G-1 (Promotion Review Board AP1901-37, FY16 MAJ, Army, Force Sustainment, Promotion Selection Board), 5 April 2019 * Enclosure 16 – Chronic Traumatic Encephalopathy (CTE) Resources * Enclosure 17 – Physical Education Board (PEB) Findings, 10 June 2019 * Enclosure 18 – Retirement Orders, 15 August 2019 * Enclosure 19 – Department of Veterans Affairs (VA) Disability Rating, 1 January 2020 and VA Summary of Benefits, 20 October 2020 * Enclosure 20 – Combat-Related Special Compensation (CRSC), 1 April 2020 * Enclosure 21 – Statement from 12 November 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to council. 3. Counsel states: a. Introduction: (1) The applicant is a medically retired combat veteran with a 100-percent disability rating due to a traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) as a result of his military service. While serving as an instructor at the U.S. Military Academy at West Point, he received a GOMOR and referred OER for allegedly pursuing an unduly familiar relationship with a female cadet, making inappropriate comments to other cadets, and sharing an email from a cadet with a third party. (2) A BOI later determined he did not make sexually suggestive comments to cadets and recommended his retention in the Army. Additionally, the third-party cadet has stated that he had no objection to the applicant sharing his email and did not consider the applicant's actions to be inappropriate or an invasion of privacy. Further, neither the GOMOR nor referred OER took into consideration the applicant's diagnoses and treatment for significant mental health and neurological conditions, which either caused or contributed to what was, at worst, a minor lapse of judgment. Accordingly, the GOMOR and referred OER contain untrue and unsubstantiated derogatory information and should be removed from the applicant's official military record due to error or injustice. b. Facts: (1) The applicant enlisted in the U.S. Army on 31 October 1989. He was commissioned as an officer on 5 August 2006. He medically retired from the U.S. Army with an honorable characterization of service on 30 October 2019 (see enclosures 3 and 4). (2) On 8 January 2010 when he was a first lieutenant, he received orders to deploy to Afghanistan in support of Operation Enduring Freedom (see enclosure 5). During his deployment, he served as the executive officer for Headquarters and Headquarters Company, 3d Brigade Combat Team, 101st Airborne Division (Air Assault), and was the officer in charge of the unit's advanced party in the initial stage for an extended period as the main body of the unit met with several transportation delays. As executive officer, he oversaw much of the Forward Operating Base (FOB) major duties and was tasked with oversight and coordination of unit maintenance, company administration, operations, supply, communications, and training. These responsibilities required him to travel to and coordinate with other installations for materials and supplies as FOB Salerno prepared to expand its footprint to facilitate an expected surge in troops. (3) On 20 March 2010 in anticipation of the arrival of the main body, the applicant drove his non-tactical government vehicle to the container yard on FOB Salerno to ascertain the expected arrival of several containers of supplies. The container yard gate was standing open and no sentry or sign was posted prohibiting entry. Immediately upon entering the container yard, an explosion detonated approximately 5 meters from his vehicle, causing the windows to shatter, the windshield of the vehicle to "spiderweb," and the rearview mirror to fall off (see enclosure 6). (4) The applicant has no recollection of taking the vehicle out of gear or turning off the ignition. At some point after the blast, he briefly remembers thinking he was dead and wondering what killed him. After regaining consciousness, he recalls seeing smoke coming out of the muzzle of a nearby M777 155-millimeter howitzer, fired by the 3d Battalion, 320th Field Artillery Regiment. The weapon had been discharged to provide fire support just as his vehicle passed in front of it (see enclosure 7). (5) The applicant eventually opened the door and exited the vehicle. As soon as he got out, his legs felt wobbly and he fell down. Sergeant First Class (SFC) and Sergeant (SGT) from the FOB's container management team witnessed the incident and were already hurrying over to see if the applicant was alright. SFCstated the 155-millimeter howitzer was located "near the entrance" and "fired over [the applicant's] vehicle" just "as [they] saw him enter" the yard. SFC stated that the applicant's "vehicle jumped sharply to the left, came to a stop and was motionless for several seconds," (see enclosure 8). (6) SFCwas extremely concerned about the applicant "due to the proximity of the vehicle to the blast." SFC observed him exit the vehicle and sink "quickly to the ground." Upon arriving, SFC"could see that [Applicant] was dazed and confused," did not answer immediately, and seemed "to be in a minor state of shock." The Soldiers helped him to his feet. Later that night, the applicant "complained of dizziness, like he had been beat up." SFC stated the perception was that the applicant had suffered a concussion (see enclosure 8). (7) SGT similarly stated he observed the M777 fire ''just as the red minivan driven by [Applicant] was passing in front of it." After hurrying to the scene, SGT Dstated "[Applicant] looked stunned and had trouble standing." He also observed that the "van suffered some damages including the shattering of some side windows, cracks all over the windshield, the rearview mirror had fallen off its mount and one of the side mirrors broke" (see enclosure 8). (8) The applicant was later awarded a Combat Action Badge "[f]or being engaged by or engaging the enemy" during his deployment and his unit earned a Valorous Unit Award "[f]or extraordinary heroism in action against an armed enemy" (see enclosure 9). (9) After returning from the deployment, the applicant began to experience significant issues commonly associated with a head injury, prompting his wife, who is a physical therapist, to insist he obtain treatment by medical personnel. (10) On 19 June 2014, the applicant went to the Troop Medical Clinic complaining of memory problems, balance problems, irritability, and sleep problems. The Defense and Veterans Brain Injury Center TBI screening tool indicated he had suffered a blast injury, causing him to be dazed, confused, and seeing stars, and that resulted in concussion symptoms afterward. He was diagnosed with having suffered a "concussion with brief loss of consciousness" and mild TBI (see enclosure 10). (11) On 1 July 2014, the applicant attended occupational therapy where he was assessed as having "decreased memory and attention secondary to multiple concussive events." He was diagnosed with "cognitive deficits, post concussive syndrome" (see enclosure 10). (12) Following his deployment to Afghanistan, the applicant attended the Combined Logistics Captains (CPTs) Career Course 11-002, served as a company commander at Fort Jackson, and was as an Assistant Professor of Military Science for a U.S. Army Cadet Command Program at Duke University. (13) While at Duke University during the period 15 November 2014 through 14 November 2015, he was described by his rater as "one of the most empathetic leaders I have served with" and the "#1 most compassionate leader I have known in 21 years of Army service." The rater described him as someone who "genuinely cares about every Cadet and Cadre in the program" and who "strongly supports EO/EEO [Equal Opportunity/Equal Employment Opportunity] and the Army SHARP [Sexual Harassment/Assault Response and Prevention] program." His rater stated that his "participative style of leadership with the Cadets is inspirational" and that "[b]ecause of his style of leadership, Cadets are inspired to seek counsel with him as a coach and mentor." His rater noted that the "program's retention rate is one of the highest with [sic] [U.S. Army] Cadet Command," which he attributed, "in large part, to [Applicant's] transformational style of leadership." He was described by his senior rater as "Highly Qualified" and recommended for immediate promotion to MAJ (see enclosure 11). (14) In April 2015, he wrote an article about deficiencies in the Army's physical training program based on his prior experience as a successful civilian strength and conditioning coach and observations made during the project on which he served while assigned to the U.S. Army Physical Fitness School. The article, entitled: "Why the Army can't get PT [physical training] right: Everyone's an expert...and a little lazy," went viral and resulted in his receiving a telephone call from General. The applicant was later awarded a coin in person by General. (15) Shortly after the article was published, the U.S. Army Human Resources Command notified him that the Department of Physical Education at West Point wanted him to serve as an instructor. He accepted the position and checked into West Point in December 2015. (16) While at West Point, he served as a professional mentor to 27 cadet leaders and instructed hundreds of other cadets on the Army Physical Readiness Training doctrine. Cadets described him as a "professional" and "caring mentor" who was "one of the best instructors" at West Point (see enclosure 12). (17) On 3 November 2016, an investigating officer (IO) was appointed to conduct an administrative investigation into allegations that the applicant made inappropriate statements to cadets. These allegations were made by Cadet after she received the lowest grade in his class. No such allegations were made against him in the online instructor critique done anonymously by cadets at the end of the term. (18) On 16 December 2016, the IO completed his investigation and determined the applicant had been unduly familiar with Cadet during a series of email exchanges. The IO found the alleged fraternization was not sexual in nature. (19) The IO noted the applicant was voluntarily interviewed during the investigation and "painted a picture of an officer who took personal care [of] the people around him, both male and female." The IO stated he had "no direct evidence to doubt [Applicant's] characterization aside from the innuendos in the email messages." (20) On 23 January 2017, he was issued a GOMOR for "pursuing an inappropriate relationship with a cadet." The GOMOR alleges he "attempted to fraternize with [a] cadet" over email, made sexually suggestive comments to other cadets, and inappropriately shared with a cadet an email from a third-party cadet, without permission from the third-party cadet" (see enclosure 1). (21) On 3 April 2017, directed permanently filing the GOMOR in applicant's military record (see enclosure 13). (22) filing determination appeared to give no weight to over 100 character- reference statements submitted in support of the applicant, including numerous statements from cadets (see enclosure 12). These and many other character-reference statements depict the applicant as a selfless and compassionate leader who truly cares about others and has been an inspirational role model to so many. (23) During the 2016-2017 school year, the applicant's mother was diagnosed with advanced Alzheimer's disease and he and his wife suffered the death of their infant daughter. These difficult personal circumstances weighed heavily on the applicant during his first year at West Point. (24) BOI: (a) In his "Acknowledgment of Receipt of Notification of Initiation of Elimination," the applicant indicated his belief that he suffered from PSTD [PTSD] or TBI as a result of deployment overseas (see enclosure 14). Despite this acknowledgement, he never received a medical examination to assess the potential effects of PTSD or TBI on the circumstances prompting the initiation of elimination. (b) On 25 September 2017, a BOI substantiated the allegations of conduct unbecoming an officer and that adverse information had been filed in his AMHRR. The board did not substantiate the allegation that the applicant "made sexually suggestive comments to other cadets" and determined the allegations did not warrant his separation from the Army (see enclosure 14). (c) During the BOI, the board members specifically questioned whether his PTSD and TBI potentially impaired his judgment and played a role in the misconduct. Unfortunately, he had not been fully diagnosed at the time and no medical evidence was presented to the board regarding the potential effects of his PTSD or TBI for his behavior (see enclosure 14). (25) Medical Treatment: (a) On 3 and 20 October 2017, the applicant underwent a neuropsychological evaluation. He was diagnosed with a "post-concussive injury." He was recommended for "outpatient cognitive remediation to address the deficits in auditory memory and selective attention" (see enclosure 10). (b) On 10 January 2017, he was selected for promotion to MAJ; however, he was later notified of a delay of promotion and referral to a Promotion Review Board because of the GOMOR (see enclosure 15). (c) On 25 January 2018, he was evaluated by an audiologist after failing his hearing screening. He disclosed that he had been experiencing "constant bilateral tinnitus that began after a 155mm [155-millimeter] cannon went off next to him in Jan [January] 2010" and reported that "his left ear hears better than his right ear." He was assigned a physical profile rating of 2 under the hearing factor. On 28 January 2019, he was fit for Resound Linx 3D hearing aids. (d) On 15 May 2018, he returned to the Fort Riley TBI Clinic after undergoing magnetic resonance imaging (MRI) of his brain. The MRI showed an abnormality in the left frontal portion of the brain consistent with someone who had taken a blast or blow to the right side as he had (cannot find in enclosure 10). The medical notes state the MRI findings "could be attributable to previous concussion" and recommended that he consult with a neurologist. The applicant's medical records document his treatments with the TBI Speech Pathology and the TBI Clinic at Fort Riley (see enclosure 10). (e) On 25 May 2018, he was seen by a neurologist, , for "progressive memory loss with difficulty performing work activities and chronic intermittent headaches" (i.e., evaluated for chronic memory loss with a history of multiple closed head injuries). He was diagnosed (i.e., assessment) with "chronic memory loss consistent with chronic traumatic encephalopathy with history of multiple closed head injuries" (see enclosure 10). He was deemed incapable of performing work in his military capacity due to CTE and post-concussive syndrome (cannot find in enclosure 10). (f) The basis for the referred OER was because he received a GOMOR during the rating period covering 31 October 2016 through 30 October 2017 (see enclosure 2). (g) On 18 July 2018, the applicant was transferred to the Warrior Transition Battalion. (h) On 31 December 2018, he completed an initial evaluation of residuals of TBI. The evaluation determined his judgment was not normal and that he suffered from "moderately impaired judgment" which made it difficult for him to "understand the consequences of choices and make a reasonable decision" in certain circumstances (see enclosure 10). (26) On 6 February 2019, he was diagnosed with bilateral sensorineural hearing loss (see enclosure 10). (27) Few service members are more deserving of relief than the applicant. He served honorably in the Army for 27 years, including two commands, without a single SHARP complaint before being medically discharged for PTSD and TBI. The adverse administrative paperwork he received was for an extremely minor "misconduct," some of which was later determined untrue, and was issued without consideration for his medical diagnoses and treatment. His significant neurological conditions either caused or contributed to his lapse in judgment and justify removal of the GOMOR and referred OER from his AMHRR. (28) The applicant's petition warrants liberal consideration pursuant to the Secretary of Defense memorandum (Supplemental Guidance to Military Boards for Correction of Military/Naval Records (BCM/NRs) Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder), 3 September 2014; Secretary of Defense memorandum (Clarifying Guidance to Military Discharge Review Boards (DRBs) for Correction of Military/Naval Records Considering Requests by Veterans for Modification of Their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment), 25 August 2017; and Army Regulation 15-180 (Army Discharge Review Board), paragraph 3-2a. (29) On 25 August 2017, the Department of Defense (i.e., the Office of the Undersecretary of Defense) issued clarifying guidance to the Military DRBs and BCM/NRs expanding liberal consideration "when the application for relief is based in whole or in part on matters relating to any mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment." "Conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge." (30) The applicant has been diagnosed with combat-related PTSD, TBI, and displays symptoms consistent with CTE. His injuries were so severe that he was medically discharged and awarded a "100% Permanent and Total" disability rating by the VA. This designation is the highest given for such a condition. As discussed further below, these medical conditions explain and/or mitigate his lapse in judgment. These conditions had not been fully diagnosed and/or were not properly considered at the time of his GOMOR and referred OER and warrant liberal consideration for his petition. His medical conditions excuse and/or mitigate his extremely minor misconduct and warrant removal of the adverse personnel documents. (31) Here, the allegation that the applicant "made sexually suggestive comments to other cadets" is totally false and was unsubstantiated by the BOI, warranting removal of the GOMOR. During the BOI, numerous cadets and former cadets testified to his professionalism and adherence to the Army's SHARP policy. testified that he was a cadet in the applicant's PE450 class during which the allegedly offensive comments were made. stated he "absolutely did not find any of the SHARP briefing to be offensive" and "never found [Applicant's] use of humor to be inappropriate or unprofessional." stated he "never personally saw any females offended by [Applicant's] behavior" and that "[n]o one expressed discomfort to [him] about [Applicant's] actions or activities" (see enclosure 14). (32) similarly testified at the BOI that there was "no inappropriate commentary at the SHARP training" and there were "no indecent or irreverent jokes about SHARP." 2LT P stated that the applicant was "very professional" in their PE450 class and that he was "one of the few captains that [sic]...incredibly invested in his subordinates." 2LT P described him as an "inspiring" leader who "makes you feel like you can succeed" and who "takes a personal interest and pushes you, and turns you into something better" (see enclosure 14). (33) Cadet testified at the BOI that she has known the applicant since the summer of 2016 and has observed him interacting with cadets. She described his behavior as "professional" and never had any cadet complain to her about his behavior (see enclosure 14). (34) Officers who have served with him echoed these sentiments. Lieutenant Colonel (was his former primary instructor at the Combined Logistics CPTs Career Course and later served with him at the U.S. Army Cadet Command during summer training in 2015 and later again at Fort Riley. He testified that he and the applicant "worked closely with the Cadets every day" and does not recall the applicant "ever being reported for inappropriate behavior with Cadets or fellow Soldiers." He further testified that the applicant "was in the top 5% of officers he had ever served with." CPT, who had formerly served as executive officer under the applicant, testified that the applicant adhered to the SHARP and Equal Employment Opportunity Programs and that his leadership style made him a "perfect leader" outside of West Point because Soldiers trusted him (see enclosure 14). (35) Neither of the cadets who were apparently offended by the applicant's statements testified at the BOI. Based on the total absence of evidence, the board determined the applicant did not make sexually suggestive comments to other cadets and unsubstantiated the allegation, lining through that language on their findings and recommendations worksheet. This untrue and unsubstantiated derogatory information should not be included in his permanent personnel record and warrants removal of the GOMOR. (36) The GOMOR improperly reprimands the applicant for lawful conduct. The GOMOR next alleges that he "inappropriately shared with a cadet an email from a third- party cadet, without permission form [from] the third-party cadet." The board determined this conduct did not warrant his discharge from the U.S. Army. (37) On 19 September 2016, the applicant received an email from Cadet, thanking him for his positive encouragement. Cadet had been struggling academically and was on the brink of leaving the academy. Cadet wrote: "Sir, I have not had the chance to thank you in class so I thought I would email you. I really appreciate what you said to my coach because he gave me a lot of praise at practice. I also want to thank you for helping me in class and giving me the ability to have more confidence in myself. I am struggling a lot at West Point, academically so it is really nice to hear an officer give me their approval. It helps me so much and makes me want to work even harder than I am so I can graduate from this institution. And also, if something did happen with the swim team I would be very interested in joining the boxing team, just don't tell my coach that ... yet. Have a good rest of the day!" (38) On 24 October 2016, he forwarded the email in subparagraph 2b(37) to Cadet l and several peers as a learning tool about leadership/mentoring saying, "stuff like this is like crack to me," in reference to making a difference in the life of a subordinate. This is the only third-party email that he ever forwarded to Cadet l. (39) The applicant's decision to forward a ''thank you" email from another cadet did not violate any policy, regulation, or statute. Neither the GOMOR nor the BOI notification alleges the violation of policy, and it's difficult to imagine how forwarding such an email would constitute "moral or professional dereliction" under Army Regulation 600-8-24 (Officer Transfers and Discharges). Further, forwarding the email was not "misconduct" in violation of any article under the Uniform Code of Military Justice (UCMJ). If a UCMJ violation had occurred, the GOMOR and BOI certainly would have alleged such and they did not. (40) Interestingly, Cadet s was not interviewed during the Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation or called as a witness at the BOI. There is no evidence that Cadet s was in any way upset that his email was forwarded. In fact, Cadet (now second lieutenant) unambiguously stated that he was not upset that the applicant forwarded his email, had no objection to the email being forwarded, and did not consider the applicant's action inappropriate or an invasion of his privacy. stated that he is upset that he was not questioned during the investigation and does not believe that anything related to his email should have resulted in adverse material against the applicant, (see enclosure 21). (41) Simply forwarding a cadet's email (which the cadet himself did not find objectionable) is not moral or professional dereliction or misconduct in violation of the UCMJ. This is particularly true when such action did not violate any named policy, regulation, or statute. Such a meritless allegation should never even had been listed as a basis for the BOI and clearly demonstrated governmental overreach. Under the circumstances, it is unjust to maintain a GOMOR in his permanent record, reprimanding him for such minor and completely lawful conduct. (42) The GOMOR's primary allegation is that the applicant pursued an inappropriate relationship and "attempted to fraternize with a cadet" by sending her email. As an initial matter, the allegation itself speaks volumes about the extremely minor nature of the applicant's conduct. He was not charged with sexual harassment or fraternization but with attempted fraternization. He never had a physical or sexual relationship with Cadet M l, never hugged or inappropriately touched her, was never alone with her in his car or office, and never even met her off post. In fact, the only place he and Cadet l ever met was Grant Hall, where officers routinely met with cadets. (43) Further, none of the email communications between the applicant and Cadet l was sexual in nature. Rather, the GOMOR simply alleged that he "suggested future travel" (hiking) and used some terms of endearment. While a handful of these messages may have been unduly familiar, the overwhelming majority of the communications were friendly, reciprocal, and well-received by Cadet (44) At the time, the applicant was sponsoring multiple cadets with whom he would frequently communicate over email. These cadets confirm that he has always been an engaged, professional, and caring leader who mentored them as individuals. Ms., a former Soldier who personally experienced his kindness and concern firmly believes that "whoever made a complaint had to have mistaken his intentions due to his personal style of leadership" (see enclosure 12). (45) Not having a medical examination to assess the potential effects of PTSD or TBI before the BOI became problematic because the members specifically inquired about his concussive history. One board member, LTC, asked if the applicant thought his history of concussions had anything to do with the allegation. Not having had many of the tests that would be conducted later, he had nothing to stand behind other than his own self-assessment and the medical opinion of his wife who is a physical therapist. For this reason, he was concerned about looking like he was making excuses and responded by stating that he thinks it "sort of play[ed] a role" and "probably contributed" to his circumstances. Unfortunately, no medical evidence was gathered or presented to the board by a healthcare professional regarding the potential effects of his PTSD or TBI on his behavior. (46) Symptoms of CTE, TBI, and PTSD include memory loss, impaired judgment, and loss of impulse control. These neurological conditions existed at the time of the applicant's alleged misconduct and excuse or mitigate his behavior. (47) The referred OER should be removed as untimely as it is in violation of Army Regulation 623-3 (Evaluation Reporting System), 4 November 2015 (effective 1 January 2016), paragraph 3-33l. The applicant's "THRU" date for the referred OER was 30 October 2017. His senior rater did not take any action on his OER until 31 July 2018, over 9 months later. This gross untimeliness violates Army Regulation 623-3 and further warrants removal of the referred OER. (48) Promotion Selection: (a) The applicant was selected for promotion to MAJ on the FY16 MAJ, Force Sustainment, Promotion List. After receiving his GOMOR, he was notified that his promotion would be delayed pending review by a Promotion Review Board. He was removed from the FY16 MAJ, Force Sustainment, Promotion List on 5 April 2019. (b) As stated above, the GOMOR he received is untrue and/or unjust, in whole or in part, and should not be included in his military record. It was this GOMOR that triggered a record review and a flag by the U.S. Army Human Resources Command. This untrue and unjust derogatory information later led to a Promotion Review Board memorandum from the Secretary of the Army, 5 April 2019, removing him from promotion eligibility. (c) But for the GOMOR, he would have been promoted to MAJ per his assigned sequence number 155. Once the GOMOR is removed from his AMHRR he should be promoted to MAJ effective with his promotion selection date and awarded all back pay and allowances. 4. Enclosure 5 – Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 008-307, 8 January 2010, deployed the applicant to Afghanistan on or about 25 January 2010 in support of Operation Enduring Freedom. 5. Enclosure 11 – The applicant's DA Form 67-9 (OER) covering the period 28 March 2009 through 4 January 2010 is filed in his AMHRR and shows in: a. Part V (Performance and Potential Evaluation) (Rater): (1) Part Va (Evaluate the Rated Officer's Performance during the Rating Period and his/her Potential for Promotion), his promotion potential during this rating period was rated as "Outstanding Performance, Must Promote"; (2) Part Vb (Comment on Specific Aspects of the Performance), states, in part: [Applicant's] performance as an Assistant S4 was outstanding during this intense rating period. In his first week in the BN [battalion] S4 shop, be made an immediate impact by identifying all anticipated power generation routine maintenance requirements and ordering sufficient quantities of supplies to support the Battalion's upcoming OEF [Operation Enduring Freedom] deployment. He served as the Battalion Unit Movement Officer for both a JRTC [Joint Readiness Training Center] rotation and OEF deployment… (3) Part Vc (Comment on Potential for Promotion), "[Applicant] is a highly experienced logistician who should be promoted and assigned as a primary staff officer or as a Battalion Maintenance Officer." b. Part VII (Senior Rater): (1) Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), he was rated "Best Qualified"; (2) Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), "No Box Check"; (3) Part VIIc (Comment on Performance/Potential), states, in part: …[Applicant] made an impact on the battalion by ordering supplies for our OEF 10-11 deployment, serving as the Unit Movement Officer for deployments to the Joint Readiness Training Center and OEF 10-11, $44,000 of end of year money for the battalion. He also did a great job cross-training NCOs [noncommissioned officers] in the S4 shop. Already picked to be a Company XO (Executive Officer], promote to Captain and send to the Captain's Career Course after the deployment. 6. The applicant was promoted to CPT effective 23 March 2010. 7. Enclosure 9 – 3d Brigade Combat Team, 101st Airborne Division (Air Assault), Permanent Order 244-064, 5 September 2010, awarded the applicant the Combat Action Badge for the period 21 July 2010 for being engaged by or engaging the enemy. 8. Enclosure 11 – The applicant's DA Form 67-9 covering the period 9 September 2010 through 10 June 2012 is filed in his AMHRR and shows in: a. Part V (Performance and Potential Evaluation) (Rater): (1) Part Va (Evaluate the Rated Officer's Performance during the Rating Period and his/her Potential for Promotion), his promotion potential during this rating period was rated as "Outstanding Performance, Must Promote"; (2) Part Vb (Comment on Specific Aspects of the Performance), states, in part: [Applicant] has performed superbly during the rating period. His advanced education and extensive civilian coaching background prepared him to immediately assume his role as a physical training subject matter expert, lead instructor and consultant to the CG [Commanding General], Initial Military Training. He possesses a unique ability to take complex exercise science principles and methodologies and effectively communicate in both oral and written formats. During the rating period, [Applicant] trained over 700 leaders... (3) Part Vc (Comment on Potential for Promotion), "Unlimited potential for promotion." b. Part VII (Senior Rater): (1) Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), he was rated "Best Qualified"; (2) Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), he was rated "Above Center of Mass"; (3) Part VIIc (Comment on Performance/Potential), states, in part: "…[Applicant] is one of the best fitness instructors that I have had at the Fitness School in the last 20 years." 9. Enclosure 9 – U.S. Army Human Resources Command Permanent Order 141-17, 21 May 2013, awarded the 3d Brigade Combat Team, 101st Airborne Division (Air Assault), the Valorous Unit Award for extraordinary heroism in action against an armed enemy for the period 1 April through 31 August 2010. 10. Enclosure 11 – OERs: a. The applicant's DA Form 67-9 covering the period 11 June 2012 through 10 June 2013 is filed in his AMHRR and shows in: (1) Part V (Performance and Potential Evaluation) (Rater): (2) Part Va (Evaluate the Rated Officer's Performance during the Rating Period and his/her Potential for Promotion), his promotion potential during this rating period was rated as "Outstanding Performance, Must Promote"; (3) Part Vb (Comment on Specific Aspects of the Performance), states, in part: "Outstanding performance, by the most innovative company commander of 12 that I have rated, [Applicant] is a fundamentals based commander that is not afraid to bring forth new ideas to better train his Soldiers and NCOs." (4) Part Vc (Comment on Potential for Promotion), "Unlimited potential, promote to Major BZ [Below the Zone] and send immediately to resident CGSC [Command and General Staff College]." (5) Part VII (Senior Rater): (a) Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), he was rated "Best Qualified"; (b) Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), "Above Center of Mass"; (c) Part VIIc (Comment on Performance/Potential), states, in part: "[Applicant] is an exceptional officer and is number 5 of 21 company commanders in this brigade. In 22 years of service, I have not seen a higher level of determination, vision and passion in a company grade officer." b. The applicant's DA Form 67-10-1 covering the period 1 February through 14 November 2014 is filed in his AMHRR and shows, in part: (1) Part IVc(1) (Character), "[Applicant] knows the Soldiers and Civilians across the 18 different sections in his company and leverages every asset to provide for their personal well-being and mission accomplishment including ensuring his Soldiers have the opportunity to attend various Strong Bonds Retreats. He fully supports and facilitates SHARP readiness"; (2) Part IVc(2) (Presence), "[Applicant] is present across the company, providing oversight, command presence and he understands what each section does in order to better facilitate mission accomplishment"; (3) Part IVc(3) (Intellect), "[Applicant's] knowledge of the company's operations allows him to interact with more senior officers and senior NCOs in a way that improves their work through removal of outside distractions usually associated with headquarters and headquarters companies"; (4) Part IVc(4) (Leads), "[Applicant] quickly identified his biggest-challenge, the Consolidated Equipment Maintenance and Storage Facility (CEMSF), comprised of three separate working cells with DA [Department of the Army] Civilians and Contractors. and made this his priority"; (5) Part IVc(5) (Develops), "[Applicant] took it upon himself to take the lead in team building across his peer-group of diverse company commanders as well as in other unifying events and lunches within his company"; (6) Part IVc(6) (Achieves), "[Applicant] ensured that although there was high personnel turnover and loss of key civilians in the CEMSF that he improved the tracking systems and devised creative manning solutions resulting in a perfect score on their Ft. [Fort] Jackson/Army Training Center Physical Security Inspection"; (7) Part VIa (Potential Compared with Officers Senior Rated in Same Grade), "Most Qualified"; and (8) Part VIc (Comment on Potential), "Top captain I senior rate. [Applicant] has spearheaded numerous improvements in his diverse company from significant improvements in physical fitness to workplace conditions, and he possesses requisite skills, dedication and abilities to excel in positions of increased responsibility. Promote to MAJ immediately and select for resident ILE [intermediate level education]." c. The applicant's DA Form 67-10-1 (OER) covering the period 15 November 2014 through 14 November 2015 is filed in his AMHRR and shows, in part: (1) Part IVc(1) (Character), "[Applicant] is one of the most empathetic leaders I have served with. [Applicant] strongly supports EO/EEO and the SHARP program"; (2) Part IVc(2) (Presence), "[Applicant] is a fit and incredibly poised leader"; (3) Part IVc(3) (Intellect), "[Applicant] celebrates the diversity across the program"; (4) Part IVc(4) (Leads), "[Applicant's] participative style of leadership with the Cadets is inspirational. Because of his style of leadership, Cadets are inspired to seek counsel with him as coach and mentor"; (5) Part IVc(5) (Develops), "[Applicant] was instrumental in building an organizational culture that fostered a positive climate with open communication, fairness, and teamwork"; (6) Part IVc(6) (Achieves), "As the Assistant Professor of Military Science, "[Applicant] made it his priority to recognize mission accomplishment for the Cadets"; (7) Part VIa (Potential Compared with Officers Senior Rated in Same Grade), "Highly Qualified"; and (8) Part VIc (Comment on Potential), "Easily in the top 25% of all captains I senior rate. [Applicant] exhibited exceptional performance as an instructor at Duke University…Unlimited potential. Promote to Major now and send to resident ILE at first opportunity and select for battalion command." d. The applicant's DA Form 67-10-1 (OER) covering the period 15 November 2015 through 20 June 2016 is filed in his AMHRR and shows in: (1) Part IVc(1) (Character), "Has an understanding of SHARP, EO and EEO"; (2) Part IVc(2) (Presence), "Recognizes opportunities to provide feedback during training and instruction"; (3) Part IVc(3) (Intellect), "Demonstrated experience with Army Physical Training. Effectively delivered course material during Army Unit Fitness lecture"; (4) Part IVc(4) (Leads), "Communicated effectively with others and able to express needs in a constructive manner"; (5) Part IVc(5) (Develops), "Extremely positive outlook regardless of the situation"; (6) Part IVc(6) (Achieves), "Able to visualize the desired end result. Capable of meeting mission requirements with adequate guidance and direction"; (7) Part VIa (Potential Compared with Officers Senior Rated in Same Grade), "Highly Qualified"; and (8) Part VIc (Comment on Potential), "[Applicant] ranks within the top 30% among a group of 19 nominatively assigned and proven officers. Select for Resident ILE, promote to MAJ and prepare for battalion command." 11. Enclosure 15 – Promotion Selection and Removal: The FY16, MAJ, Army Competitive Categories, Selection Board Results, 10 January 2017, show the applicant was selected for promotion to MAJ. 12. Enclosure 1 – GOMOR, 23 January 2017, shows: a. Brigadier General reprimanded the applicant for pursuing an inappropriate relationship with a cadet. b. An investigation revealed approximately 66 email messages sent by the applicant to a cadet assigned to the U.S. Corps of Cadets. These messages revealed that he attempted to fraternize with this cadet. In these messages he suggested future travel with this cadet, and he used terms of endearment such as "angel," "loveable," and "pretty." Moreover, he made sexually suggestive comments to other cadets. The applicant also inappropriately shared with a cadet an email from a third-party cadet, without permission from this third-party cadet. This behavior was unprofessional, inappropriate, and not in accordance with the Army Values or standards of conduct expected of a commissioned officer. c. His conduct was appalling and completely unacceptable for a commissioned officer in the U.S. Army. As a leader, he was entrusted with enforcing the highest standards of the U.S. Army and the officer corps. His behavior has seriously compromised his standing as an officer, and she questioned his ability to lead. As a captain in the U.S. Army, he must demonstrate exemplary personal and professional conduct at all times. He failed in that regard. His irresponsible conduct and inability to adhere to standards of conduct raise serious doubts as to his potential for further Army service. His actions have brought discredit upon himself, his unit, and the U.S. Army. d. This reprimand was imposed as an administrative measure in accordance with Army Regulation 600-37(Unfavorable Information), and not as punishment under Article 15, UCMJ. She intended to recommend that a copy of this memorandum be placed in his AMHRR. A final filing decision would not be made; however, until the Superintendent, as the final filing authority, reviewed any written matters the applicant choose to submit for consideration. 13. On 31 January 2017, the applicant acknowledged receipt of the GOMOR. 14. The applicant's memorandum for the Commandant, U.S. Corps of Cadets (Rebuttal – GOMOR), 15 February 2017, requested locally filing the GOMOR. He fully accepted responsibility for putting himself in a position to be misunderstood. He humbly asked that his character be judged on his 27 years of exceptional active duty and Reserve service, as well as by the depth and strength of the 100 positive character references that were submitted from dozens of PE450 students, as evidence that an inaccurate picture was portrayed. He denied having a romantic interest in Cadet M l, and accepted without condition that he placed himself in a position to be misperceived. 15. Enclosure 13 – GOMOR Filing Determination – On 3 April 2017, after considering the GOMOR, the circumstances of the misconduct, and all matters submitted by the applicant in defense, the imposing general officer directed permanently filing the GOMOR in the applicant's AMHRR with all enclosures. 16. Enclosure 14 – BOI Materials: a. Superintendent, U.S. Military Academy Memorandum to Applicant (Initiation of Elimination), 9 May 2017, states the applicant was notified of an initiation of elimination for receiving the GOMOR and conduct unbecoming an officer. He was informed that he would receive a suspension of favorable personnel actions flag. b. Applicant's Memorandum for Superintendent, U.S. Military Academy (Acknowledgment of Receipt of Notification of Initiation of Elimination, Applicant), 10 May 2017, states he acknowledged receipt of notification of the initiation of elimination. He indicated his belief that he suffered from PTSD or TBI as a result of deployment overseas in support of a contingency operation during the previous 24 months. c. The DA Form 1574-2 (Report of Proceedings by Board of Officers) shows the applicant appeared before a BOI on 25 September 2017. The BOI determined the following: (1) Misconduct, moral or professional dereliction, or in the interests of national security, per Army Regulation 600-8-24, paragraph 4-2b. The board found that the allegation was supported by a preponderance of the evidence. (2) Army Regulation 600-8-24, 4-2b(8). Conduct unbecoming an officer in that an investigation revealed approximately 66 email messages sent by the applicant to a cadet assigned to the U.S. Corps of Cadets. These messages revealed that he attempted to fraternize with this cadet. In these messages he suggested future travel with this cadet, and he used terms of endearment such as "angel," "loveable," and "pretty." The applicant also inappropriately shared with a cadet an email from a third- party cadet, without permission from this third-party cadet. The allegation did not warrant separation. (3) Derogatory Information, per Army Regulation 600-8-24, paragraph 4-2c. The board found the allegation was supported by a preponderance of the evidence. (4) Army Regulation 600-8-24, paragraph 4-2c(5). The board found the allegation that adverse information was filed in the AMHRR was supported by a preponderance of the evidence. The allegation did not warrant separation. (5) The board elected to retain the applicant for further military service. 17. Enclosure 2 – DA Form 67-10-1 (OER) covering the period 31 October 2016 through 30 October 2017 is filed in his AMHRR. His senior rater referred the OER. It shows in: a. Part IVb (Headquarters, Department of the Army, Comparison of the Rater's Profile and Box Check at the Time this Report Processed), "Unsatisfactory" and contains the comments: "Solid performance by a motivated Officer. With minimal supervision, [Applicant] demonstrated the ability to execute all assigned tasks above standard"; b. Part IVc(1) (Character), "[Applicant] received a GOMAR during this rating period"; c. Part IVc(2) (Presence), "[Applicant's] confidence and physical fitness helped him contribute to the Military Training Division of the Department of Military Instruction while serving as an assistant Operations Officer. As a result, [Applicant] was chosen to serve as the Camp Buckner Ammo Holding Area Officer in Charge, overseeing the distribution of thousands of rounds of ammunition to over 3000 cadets during Cadet Summer Training"; d. Part IVc(3) (Intellect), "[Applicant's] mental acuity and attention to detail allowed him to complete complex logistical requirements on a regular basis. [Applicant's] interpersonal skills fostered a positive learning environment for cadets during Cadet Summer Training. As an expert in physical conditioning [Applicant] spoke at a Tactical Strength and Conditioning Conference on the topic of training military populations"; e. Part IVc(4) (Leads), "[Applicant] mentored multiple cadets as they executed their leadership detail during basic and field training. His direct leadership contributed to their growth as young officers and taught them the complexities of synchronizing logistics with operations. Willing to assist in any task, [Applicant's] desire to serve is a hallmark of his leadership"; f. Part IVc(5) (Develops), "[Applicant] used his prior service experience to teach, coach and mentor cadets on proper ammunition procedures. He organized professional development sessions with Task Force personnel to ensure Cadets received proper training for logistical operations. He managed Ammunition operations at the AHA [Ammunition Holding Area] in support of military training, keeping lateral and higher headquarters informed of key events and statuses"; g. Part IVc(6) (Achieves), "[Applicant] worked tirelessly to update ammunition handling during Cadet Summer Training 2017. He managed ammunition operations at the AHA in support of military training, keeping lateral and higher headquarters informed of key events and statuses. [Applicant] efforts where lauded by inspection teams and Quality Assurance, highlighting the best ammunition handling procedures in 10 years"; h. Part VIa (Potential Compared with Officers Senior Rated in Same Grade), "Qualified"; and i. Part VIc (Comment on Potential), "[Applicant] is competent in duties expected of a CPT. His character is lacking, which resulted in him being formally reprimanded for fraternization, and this severely limits his potential for service at higher levels." 18. His DA Form 67-10-2 (OER) covering the period 31 October 2017 through 1 June 2018 is filed in his AMHRR and shows, in part: a. Part IVd1 (Character), "[Applicant (P) [Promotable]] is a great leader. His strength and ability to build and foster relationships is impressive. He fully supported the Division's SHARP, EO and EEO programs"; b. Part IVd2 (Performance), comments:"[Applicant (P)] Is an analytical thinker who takes the time to gather facts and mission requirements. His writing and speaking abilities are noteworthy and make him an ideal candidate for instructor positions"; c. Part IVe (The Officer's overall Performance is Rated as), "Proficient" and comments: "[Applicant's (P)] performance during the rating period has been outstanding. Anthony has proven his skills while being a contributing member of the G4 team. He completed all tasks and successfully provided staff support to numerous exercises to include Warfighter 18-03 and Joint Warfighter Assessment 18-1"; d. Part VIa (Potential Compared with Officers Senior Rated in Same Grade), "Highly Qualified"; and e. Part VIc (Comment on Potential), his senior rater entered the comments: "[Applicant (P)] is prepared for Key and Developmental duties at the Battalion level. Great potential to utilize his interpersonal skills and knowledge of the logistical enterprise. Continue to challenge this officer with increased responsibility." 19. Enclosure 12 – 81 Character Letters: a. states that she "wouldn't be alive today" if not for the applicant who was her advanced individual training commander in 2012. She states that she confided in the applicant that she was having suicidal thoughts following a suicide safety-stand down. While most officers would have simply sent their Soldier to the chaplain and moved on, she states the applicant listened to her and promised that everything would be okay. The applicant instructed her to come see him or the platoon sergeant at any time if she needed anything, and that if it was nighttime to tell the staff duty NCO to call him at home and wake him up. states that "in all [her] years in the Army, no leader compare[d] to [the applicant]." She states that the applicant was absolutely loved by the NCOs in the company. states that the applicant was "literally the father [she] never had and that "whoever made a complaint had to have mistaken his intentions due to his personal style of leadership." b. The applicant's superiors, peers, and subordinates agreed that he was respected for his ability to care for others and to teach them. He was approachable, empathetic, and able to somehow balance his strong sense of caring with a command presence necessary to push people to greatness. He is the definition of a leader of character. He served as a role model, officer, mentor, and instructor. His professionalism, servant leadership, and respect inspired those around him to emulate a similar level of excellence. 20. Enclosure 8 – Two Eyewitness Statements: a. SGT's witness statement, 30 August 2018, states: (1) He served in Afghanistan from November 2009 to October 2010 at FOB Salerno in Khost Province, Afghanistan. He was part of a small team doing container management along with SFC (2) On 20 March 2010, SFC and SGT were in the container yard at FOB Salerno. The yard was on a slight rise and they had a good view of the surrounding area, which included the firing area for the triple M777 weapons. One of the weapons was fired just as a red minivan driven by the applicant was passing in front of it. When SFC and SGT aw this they hurried to see if he was alright. (3) When they arrived, the applicant looked stunned and had trouble standing. Also, the van suffered some damages including the shattering of some side windows, cracks au over the windshield, the rearview mirror had fallen off its mount and one of the side mirrors broke. They looked the applicant over, there did not appear to be any visible or obvious wounds. SGTtried to convince the applicant to let him drive him to the base hospital. The applicant seemed hesitant to ask for help, though in hindsight they should have insisted. They stayed with him for a while. After the applicant left they saw him approximately 12 hours later in the dining facility and he was still visibly shaken. b. SFC (Retired) witness statement, 5 September 2018, states: (1) He served as the NCO in charge for the Deployment Distribution Support Team at FOB Salerno from 15 November 2009 to 1 October 2010. (2) On or about 20 March 2010, SGT and SFC were working outside in their main container yard at FOB Salerno. While performing an inventory, they noticed a red minivan entering the yard driven by the applicant. Just as they saw him enter, the M777 155-millimeter howitzer located on the other side of the yard near the entrance fired over the applicant's vehicle. (3) The vehicle jumped sharply to the left, came to a stop, and was motionless for several seconds. Due to the proximity of the vehicle to the blast, they immediately went to see if the occupant(s) were okay. On their way, the applicant exited the vehicle and sank quickly to the ground. Upon arriving, they could see that he was dazed and confused and they asked if he was alright. He did not answer immediately, but held up one finger as if to say "give me a second." He seemed to us to be in a minor state of shock. After a few moments we asked if he wanted them to take him to the hospital and he said no. They stayed with him for several minutes and eventually helped him to his feet, whereupon he left and continued with his business. (4) After the incident, SGT nd SFC commented to each other that he must have really gotten his bell rung being so close to the muzzle blast. They followed up with him later that evening at the dining facility and he complained of dizziness, like he had been "beat up." Their perception was that he had a concussion. 21. Enclosure 15 – Promotion Selection and Removal – The Secretary of the Army Memorandum for Deputy Chief of Staff, G-1 (Promotion Review Board AP1901-37, FY16 MAJ, Army, Force Sustainment, Promotion Selection Board), 5 April 2019, states the applicant was immediately removed from the FY16 MAJ, Force Sustainment promotion list, pursuant to Title 10, USC 629(a) [Title 10, U.S. Code, section 629(a)], Executive Order 12396, and Army Regulation (Officer Promotions), paragraph 8-1b. 22. Enclosure 17 – PEB Findings, shows, on 10 June 2019, an informal PEB determined that the applicant was physically unfit for continued service and recommended a 100-percent disability rating for his TBI and PTSD (in combination with post-concussive cognitive impairment). The PEB determined that his condition was the result of "being within muzzle blast radius of artillery firing, being engaged with indirect fire." The PEB further noted that he had earned the Combat Action Badge as the "direct result of armed conflict." Section V (Administrative Determinations), the PEB stated his disability disposition was "based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303 [Title 5, U.S. Code, sections 8332, 3502, and 6303])." The PEB further found that "[t]he disability did result from a combat-related injury under the provisions of Title 26 USC 104 [Title 26, U.S. Code, section 104] or Title 10 USC 10216 [Title 26, U.S. Code, section 10216]." 23. Enclosure 18 – Retirement orders, shows on 15 August 2019, the applicant was issued retirement orders due to "physical disability" warranting his placement on the temporary disability retired list effective 31 October 2019. The orders affirmed that his "[d]isability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined as law." The orders further confirmed that the "[d]isability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]." 24. Enclosure 3 – DD Form 214, shows on 30 October 2019, medically retired with an honorable character of service. He completed 11 years, 7 months, and 11 days of net active service during this period, including 1 year, 4 months, and 25 days of foreign service. His DD Form 214 shows he was awarded or authorized the: * Meritorious Service Medal * Army Commendation Medal (6th Award) * Army Achievement Medal * Meritorious Unit Commendation * Valorous Unit Award * Army Good Conduct Medal * Army Reserve Component Achievement Medal * National Defense Service Medal * Southwest Asia Service Medal (2nd Award) * Bronze Star Medal * Southwest Asia Service Medal with two bronze service stars * Global War on Terrorism Service Medal * Korea Defense Service Medal * Afghanistan Campaign Medal with one campaign star * Iraq Campaign Medal with two campaign stars * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Army Reserve Component Overseas Training Ribbon * Military Outstanding Volunteer Service Medal * North Atlantic Treaty Organization Medal * Kuwait Liberation Medal-Saudi Arabia * Kuwait Liberation Medal-Kuwait * Combat Action Badge * Air Assault Badge 25. Enclosure 19 – VA Disability Rating, 1 January 2020, shows the VA awarded the applicant a 100-percent disability rating for "service connection for traumatic brain injury (TBI) with comorbid post-traumatic stress disorder (PTSD) with light sensitivity" on 31 October 2019. 26. Enclosure 20 – The CRSC decision letter, 1 April 2020, shows his claim was approved and he was granted a 100-percent disability rating for TBI with comorbid PTSD. CRSC is a program for military retirees with combat-related disabilities. Disabilities that may be considered combat related injuries incurred as a direct result of Armed conflict, hazardous duty, an instrumentality of war, and simulated war. 27. Enclosure 19 – The applicant's VA Disability Rating – VA Summary of Benefits, 20 October 2020, shows the applicant is service connected for TBI with comorbid PTSD with light sensitivity and was granted a 100-percent rating effective 31 October 2019. 28. Enclosure 7 – The applicant's narrative statement, 29 October 2020, states that upon arriving in Afghanistan, he served as the acting company commander for several weeks while the main body dealt with several transportation delays en route from Fort Campbell. During this period, a portion of his duties included ensuring that several dozen 40-foot containers of equipment and supplies arrived at their FOB. a. On 20 March 2010, he drove to the container yard in a small 3-cylinder non- tactical European minivan assigned to him to get around the FOB. As he entered the yard, a colossal explosion occurred, the sound and concussion of which can only be understood by someone who's been through it. He does remember sitting in a dazed fog thinking "so this is what it feels like to be dead." b. As he came to the realization about what happened, he eventually opened his door and exited the vehicle. As soon as he got out, he fell down. He initially declined the two Soldiers taking him to the medical hut, though he did experience the effects of the blast for days. c. He was medically retired from the Army on 30 October 2019 after 30 years of service and currently has a "100% Permanent and Total" VA designation for TBI and PTSD. 29. Enclosure 16 – CTE Resources states CTE is a degenerative brain disease found in athletes, military veterans, and others with a history of repetitive brain trauma. Symptoms of CTE can take months or years to present themselves and include memory loss, impaired judgment, and loss of impulse control. Scientific studies have conclusively linked CTE to U.S. military veterans exposed to blast and/or concussive injury, like that experienced by the applicant. 30. Enclosure 21 – The statement from 2LT, 12 November 2020, states: a. He first met the applicant when he was his instructor for boxing class at the academy. The applicant was one of the only instructors that still stands out to him today. His willingness, patience, and overall attitude made you want to learn from him. He was very professional yet can communicate on a level where it feels like a friend was coaching you and giving you strength to finish. 2LTstruggled at the academy up until second semester of his junior year. He remembers the applicant meeting with him outside of the academic atmosphere when he was stressed and angry. The applicant always supported him and gave him positive feedback. He believes the applicant personally helped him to graduate West Point. He was a professional in every aspect and 2LT never saw him act inappropriately in any situation. b. In September 2016, 2LT sent an email to the applicant thanking him for supporting him. He sent this email because the applicant had a tremendous influence on him while at school and he wanted to express his gratitude. When a person helps someone change their attitude to a positive outlook, it is an impressive feat. He learned that his email was brought up during an Army Regulation 15-6 investigation and later became part of the basis for a GOMOR and BOI against the applicant. 2LT was surprised by this because he was never questioned during the Army Regulation 15-6 investigation or called as a witness at the BOI. It greatly upset him that he was not questioned about a situation involving an email that he authored. c. He took absolutely no issue with the applicant sharing his email with another cadet and in fact, is happy that he shared it. If anything, the email could have helped that cadet overcome confidence issues by seeing another cadet telling his story. He does not believe that it was inappropriate in any way or an invasion of his privacy for the applicant to share his email. He would have unhesitatingly given the applicant his permission to share the email. He strongly disagrees with any of Army Regulation 15-6 finding or adverse action taken against the applicant for sharing his email. 31. MEDICAL SECTION: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting removal of derogatory information from his official military personnel file. He states through counsel: (1) “CPT {Applicant} is a medically retired combat veteran with a 100% disability rating due to Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD) as a result of his military service. While serving as an instructor at the United States Military Academy at West Point, CPT {Applicant} was given a GOMOR and referred OER for allegedly pursuing an unduly familiar relationship with a female Cadet, making inappropriate comments to other Cadets, and sharing an email from a cadet with a third party. (2) A Board of lnquiry later determined that CPT {Applicant} did NOT make sexually suggestive comments to Cadets and recommended his retention in the Army. Additionally, the third-party Cadet has stated that he had no objection to CPT {Applicant} sharing his email and did not consider CPT {Applicant} 's actions to be inappropriate or an invasion of privacy. Further, neither the GOMOR nor referred OER took into consideration CPT {Applicant} 's diagnoses and treatment for significant mental health and neurological conditions which either caused or contributed to what was, at worst, a minor lapse of judgment.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 20 March 2008 and was placed on the Temporary Duty Retirement List (TDRL) on 30 October 2019 under the provisions provided in Chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). ePEB shows that he is currently in the TDRL reevaluation process. c. On 10 June 2019, a physical evaluation board (PEB) found the applicant to have two medical conditions which were unfitting for continued service; “Traumatic brain injury with posttraumatic stress disorder; persistent depressive disorder (in combination with post-concussive cognitive impairment);” and “Cervical spine mild degenerative spondylosis most notable at C5-C6.” The former condition was determined to be unstable and so the board recommended the applicant be placed on the TDRL with a 100% disability rating. On 24 July 2019, after being counseled on the board’s findings by his PEB Liaison Officer (PEBLO), he concurred with the PEB and declined of request a reconsideration of his ratings. d. The applicant’s medial conditions do not mitigate the behaviors for which he received the referred OER and GOMOR. e. It is the opinion of the ARBA medical advisor the applicant did not have a mental health or other medical condition which would mitigate his actions; and that granting his requests based on a medical condition is not warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that partial relief was warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board noted the applicant’s length of service and awards and recognitions received. One possible outcome was to deny relief. However, the majority of Board members non-concurred with the ARBA medical advisor. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for partial relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X : X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : X: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of Army records of the individual concerned by corrected by * moving general officer memorandum of reprimand (GOMOR), 23 January 2017 to the restricted file of his official military personnel file (OMPF) * removing DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 31 October 2016 through 30 October 2017 from his AMHRR certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-180, effective 25 October 2019, prescribes the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of a discharge of any service member discharged from active military service within 15 years of the service member's date of discharge. Paragraph 3-2a states the Army Review Boards Agency prioritizes the review of all applicants whose request for relief is based, in whole or in part, on matters relating to PTSD or TBI, as supporting rationale or justification for priority consideration. The PTSD or TBI may be diagnosed as being a consequence of deployment in support of a contingency operation or may otherwise be asserted by the applicant if related to combat or sexual assault or sexual harassment. 3. Army Regulation 15-185 (Army Board for Correction of Military Records), 31 March 2006, prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 600-20 (Army Command Policy and Procedure), effective 6 November 2014, prescribed the policy and responsibility of command, which included readiness and resiliency of the force military and personal discipline and conduct, the Army Equal Opportunity Program, and the Sexual Harassment/Assault Response and Prevention (SHARP) Program (formerly the Prevention of Sexual Harassment and the Army Sexual Assault Prevention and Response Program). a. Paragraph 4-14b (Relationships between Soldiers of Different Grade) stated Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier, or between a noncommissioned officer and a junior enlisted Soldier. Examples of familiarity between Soldiers that may become "undue" can include repeated visits to bars, nightclubs, eating establishments, or homes between an officer and an enlisted Soldier, or a noncommissioned officer and a junior enlisted Soldier, except for social gatherings that involve an entire unit, office, or work section. All relationships between Soldiers of different grade are prohibited if they: (1) compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; (2) cause actual or perceived partiality or unfairness; (3) involve, or appear to involve, the improper use of grade or position for personal gain; (4) are, or are perceived to be, exploitative or coercive in nature; or (5) create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. b. Paragraph 6-11 (Evaluation Reports) stated when evaluating officers, enlisted Soldiers, or Department of the Army civilian employees, rating officials will evaluate those individuals' commitment to the goals and objectives of the Equal Opportunity or Equal Employment Opportunity Program. This included the individuals' actions or non- actions toward the prevention and elimination of unlawful discrimination and/or sexual harassment. Raters were required to document significant deviations from that commitment and identify instances of reprisal/retaliation taken by the rated individual in that evaluation report. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management), effective 7 May 2014, prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 6. Army Regulation 600-37, effective 20 January 1987, set forth policies and procedures to: * authorize placement of unfavorable information about Army members in individual official personnel files * ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files * ensure the best interests of both the Army and Soldiers were served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files a. Paragraph 1-4 states the objectives of this regulation are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in service or advanced to positions of leadership, trust, and responsibility. b. Paragraph 1-4c states an objective of this regulation is to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity. c. Paragraph 2-2e states revises, alters, or removes from the official military personnel file unfavorable information covered by this regulation that is determined upon appeal to be unjust or untrue, in part or in whole (see chapter 7). d. Chapter 3 (Unfavorable Information in Official Personnel Files) states 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 a filing determination is made. e. Paragraph 3-2c states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. f. Paragraph 3-4 states filing of non-punitive administrative letters of reprimand, admonition, or censure in official personnel files, such as a memorandum of reprimand, may be filed in a Soldier's AMHRR 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 reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed per chapter 7 (Appeals). g. Paragraph 7-2a (Appeals for Removal of AMHRR Entries) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 7. Army Regulation 623-3, effective 1 January 2016, prescribed the policies for completing evaluation reports and associated support forms that are the basis for the Army's evaluation reporting system. a. Paragraph 2-12j stated the rater will assess the rated Soldier's performance in fostering a climate of dignity and respect and adhering to the requirements of the SHARP Program. (1) This assessment should identify, as appropriate, any significant actions or contributions the rated officer or noncommissioned officer made toward: (a) promoting the personal and professional development of subordinates; (b) ensuring the fair, respectful treatment of unit personnel; and (c) establishing a workplace and overall command climate that fosters dignity and respect for all members of the unit. (2) This assessment should also identify any failures by the rated Soldier to foster a climate of dignity and respect and adhere to the SHARP Program. (3) Raters will include this information in the DA Form 67-10-1, Part IVc(1) (Character). b. Paragraph 3-33l (Timeliness of Submission) stated evaluation reports would be forwarded error-free to reach Headquarters Department of the Army (HQDA) no later than 90 days after the "THRU" date of the evaluation report. The senior rater is responsible for ensuring the timely submission of OERs and noncommissioned officer evaluation reports to HQDA. c. Paragraph 3-36 (Modifications to Previously Submitted Evaluation Reports) addressed requests for modifications to both completed evaluation reports that are filed in a Soldier's AMHRR and evaluation reports that are being processed at HQDA prior to completion. (1) An evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. (2) Requests for modifications to evaluation reports already posted to a Soldier's AMHRR require use of the Evaluation Report Redress Program. (3) Requests that a completed evaluation report filed in a Soldier's AMHRR file be altered, withdrawn, or replaced with another report will not be honored if the request is based on the following: * statements from rating officials that they underestimated the rated Soldier * statements from rating officials that they did not intend to assess the rated Soldier as they did * requests that ratings be revised * statements from rating officials claiming administrative oversight or typographical error in checking blocks on forms for professional competence, performance, or potential * statements from rating officials claiming OERs or noncommissioned officer evaluation reports were improperly sequenced to HQDA by the unit or organization * a subsequent statement from a rating official that he or she rendered an inaccurate evaluation of a rated Soldier's performance or potential in order to preserve higher ratings for other officers or noncommissioned officers (for example, those in a zone for consideration for promotion, command, or school selection) (4) For evaluation reports that have been completed and filed in a Soldier's AMHRR, substantive appeals will be submitted within 3 years of an evaluation report's "THRU" date. Administrative appeals will be considered regardless of the period of the evaluation report; decisions will be made based on the regulation in effect at the time reports were rendered. (5) An exception is granted for evaluation reports when: * information that was unknown or unverified when the evaluation report was prepared is brought to light or verified * this information is so significant that it would have resulted in a different evaluation of the rated Soldier * the following actions will be accomplished in an effort to modify the evaluation report – * if the information would have resulted in a higher evaluation, the rated Soldier may appeal the evaluation report and rating officials may provide input to support this point * if the information would have resulted in a lower evaluation, rating officials may submit an addendum to be filed with the OER d. Chapter 4 (Evaluation Report Redress Program) stated the program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred. (1) Paragraph 4-7a (Policies) stated an evaluation report accepted for inclusion in the rated Soldier's AMHRR is presumed to: * be administratively correct * have been prepared by the proper rating officials * represent the considered opinion and objective judgment of the rating officials at the time of preparation (2) Paragraph 4-8a (Timeliness) stated because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. (3) Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of an evaluation report, the applicant will produce evidence that establishes clearly and convincingly that: * the presumption of regularity referred to in paragraphs 3-36a and 4-7a will not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice (4) Paragraph 4-11d stated for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the applicant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the evaluation report was rendered. The results of a commander's or commandant's inquiry may provide support for an appeal request. 8. Army Regulation 600-8-29, effective 25 March 2005, prescribed the officer promotion function of the military personnel system. It provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Paragraph 1-10c (Promotion Eligibility), as established by the Secretary of the Army under Title 10, U.S. Code, sections 573, 574, and 619, stated officers must meet the following minimum time-in-grade requirements to be considered for promotion. CPT, MAJ, and LTC must serve at least 3 years of time in grade to be considered for promotion. a. If selected, officers may be promoted without regard to any additional time-in- grade requirements, except as provided in paragraph b below. b. To the extent permitted by Title 10, U.S. Code, section 622, promotion zones for Medical or Dental Corps officers will be established to ensure that those in the zone, if selected, will be promoted on the sixth anniversary of their active date of rank, except as provided in paragraphs 1-16b(1) and (2). c. Paragraph 8-1b stated the Secretary of the Army may remove the name of an officer who is on a promotion list. Promotion Review Boards are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. 9. The American Speech-Language-Hearing Association website states sensorineural hearing loss is the result of damage to the inner ear. Sensorineural hearing loss can be the result of a blow to the head, listening to loud noises, or explosions. 10. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 11. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. //NOTHING FOLLOWS//