IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220007833 APPLICANT REQUESTS: through counsel, correction of his service record to reflect: •Promotion to the rank of Chief Warrant Officer Three (CW3) at the time ofplacement on the Temporary Disability Retired List (TDRL) and the PermanentDisability Retired List (PDRL) by the Physical Evaluation Board (PEB). •Removal of his Article 15 for violation of Article 133 Uniform Code of MilitaryJustice (UCMJ) from his official record. •A personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Legal Counsel Supplemental Statement •Tab A: •Orders Number D341-29 •DD Form 214 (Certificate of Release or Discharge from Active Duty) •Orders Number 136-0014 •DD Form 2648 (Pre-Separation Counseling Checklist for Active Component,Active Guard/Reserve, Active Reserve, Full Time Support, and ReserveProgram Administrator Service Members) •Memorandum, Subject: Classification of U.S. Army Reserve (USAR) WarrantOfficer, 7 May 2013 •DA Form 199 (Formal Physical Evaluation Board Proceedings), 25 February 2013 •Finance Timeline Sheet •Orders Number 122-010, 2 May 2007 •Orders Number 115-115, 25 April 2007 •Orders Number 05-348-00004, 14 December 2005 •DA Form 4444-R (JUMPS Substantiating Document Worksheet) •Family Separation Allowance (FSA) Recoupment List •DA form 5960 (Authorization to Start, Stop, or Change Basic Allowance forQuarters (BAQ) and/or Variable Housing Allowance (VHA)), 29 September 2011 •DD Form 1561 (Statement to Substantiate Payment of FSA), 29 September 2011 •Handwritten Note •DD Form 1351 (Travel Voucher or Subvoucher), 23 January 2008 •Defense Finance and Accounting Service (DFAS) Travel Voucher, covering31 January 2006 to 6 May 2007 •Orders Number 05-160-00203, 9 June 2005 •Orders Number 05-227-00201, 15 August 2005 •Orders Number E-08-703872, 3 August 2007 •Orders Number E-08-703872A01, 8 August 2007 •Orders Number 084848, 16 September 2011 •Orders Number 231-001, 19 August 2010 •Criminal Investigation Division (CID) Form 94 (Agent's Investigation Report),22 February 2012 •CID Report Supporting Documents - DFAS Travel Vouchers, covering 21 October 2005 to 15 November 2011 •DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), 11 October 2012 •Officer Record Brief (ORB), 26 November 2012 •DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), 15 March 2013 •SGLV Form 8600 (Part A- Member's Claim Information and Authorization), 19 December 2012 •SGLV Form 8286 (Prudential Servicemember's Group Life Insurance (SGLI)Election and Certificate), 4 December 2012 •DD Form 93 (Record of Emergency Data), 4 December 2012 •Department of the Army SGLI Spouse Letter, 4 December 2012 •SGLV Form 8286, 3 November 2011 •DD Form 93, 3 November 2011 •DA Form 67-9 (Officer Evaluation Report (OER), covering 10 February 2010to 9 February 2011 •Orders Number R-08-087693A01, 15 September 2010 •DD Form 93, 27 August 2010 •SGLV 8286, 27 August 2010 •Orders Number R-08-087693, 11 August 2010 •Orders Number 052601, 12 March 2010 •OER, covering 10 February 2009 to 9 February 2010 •OER, covering 10 February 2008 to 9 February 2009 •Medical Records •OER, covering 11 February 2006 to 10 February 2007 •Orders Number R-06-373802A02, 3 August 2006•Orders Number R-06-373802A01, 17 April 2006 •OER, covering 27 June 2005 to 10 February 2006 •DA Form 1506 (Statement of Service – For Computation of Length of Servicefor Pay Purposes), 24 September 2005 •OER, covering 27 June 2004 to 26 June 2005 •Orders Number B-04-500976, 26 April 2005 •OER, covering 27 June 2003 to 26 June 2004 •Memorandum, Subject: Letter Order Classification of U.S. Army Reserve(USAR) Warrant Officers, 8 March 2004 •Certificate of Achievement, 20 February 2004 •DA Form 1059 (Service School Academic Evaluation Report), 5 December 2003 •Ground Supervisor Course Certificate, 5 December 2003 •Maintenance Leader Course Certificate, 20 October 2003 •Orders Number E-08-303941A01, 12 September 2003 •Certificate of Appointment, 27 June 2003 •Orders Number R-07-374202, 17 July 2003 •DA Form 2173 (Statement of Medical Examination and Duty Status), 11 July 2003 •Line of Duty (LOD) letter, dated 14 July 2003 •DA Form 2823 (Sworn Statement), 18 June 2003 •DD Form 689 (Individual Sick Slip), 16 June 2003 •Orders Number E-05-301993, 13 May 2003 •Certificate of Graduation from Warrant Officer Candidate School, 27 June 2003 •DA Form 71 (Oath of Office – Military Personnel), 27 June 2003 •Memorandum, Subject: Appointment as a Reserve Warrant Officer of theArmy Under Sections 591 and 597, Title 10, United States Code (USC), 27 June 2003 •DD Form 214 (Certificate of Release or Discharge from Active Duty), ending26 June 2003 •Orders Number D-06-390124, 25 June 2003 •Orders Number R-06-373802, 25 June 2003 •Orders Number R-08-005639A01, 15 August 2002 •Unit Level Logistics System-Ground (Sustainment) Certificate, 3 December 2001 to 7 December 2001 •DA Form 2-1 (Personnel Qualification Record – Part II) •DA Form 638 (Recommendation for Award) •Basic Operator Course Diploma, 11 May 2001 •Orders Number R-03-101212, 5 March 2001 •DA Form 2166-7 (Non-commissioned Officer Evaluation Report (NCOER))covering March 2000 to February 2001•Certificate of Achievement •Company Training Course Diploma, 3 November 2000 •USAR Unit Pay Administration Course Diploma, 21 September 2000 •Orders Number 227-47, 14 August 2000 •Basic Unit Movement Officer Training Certificate, 16 February 2000 •DA Form 1059, 14 January 2000 •Unit Level Logistics Course Certificate, covering 9 January 2000 to 14 January 2000 •DA Form 2A (Personnel Qualification Record – Part I), 2 October 1999 •Active Guard/Reserve (AGR) Entry Training Diploma, 3 September 1999 •Orders Number R-08-005639, 16 August 1999 •Certificate of Achievement, 24 June 1999 •Motor Transport Operator Course Certificate, 27 May 1999 •DA Form 5646-R (Statement of Conditions of Service – Active Guard Reserve(AGR)), dated 13 March 1999 •DA Form 5646-R (Statement of Conditions of Service AGR), 13 March 1999 •DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the UnitedStates), 9 February 1999 •National Guard Bureau (NGB) Form 22 (Report of Separation and Record ofService), 8 February 1999 •Nevada Army National Guard (NVARNG) Interstate Transfer •DA Form 2-1 •Associates Degree, 10 August 1998 •Orders Number 209-156, 28 July 1998 •Associates Degree Transcript, 28 January 2000 •Diploma of Occupational Proficiency, 29 May 1998 •DA Form 2166-7 (NCOER), from December 1996 to November 1997 •DA Form 2166-7, from December 1995 to November 1996 •DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), 2 June 1996 •Orders Number 136-1, 15 May 1996 •DA Form 4836, dated 10 July 1993 •DD Form 4, 13 August 1992 •DD Form 214, 12 August 1992 •Certificate of Recognition •DD Form 4, 15 August 1991 •Record Telecommunications Center Operator Course Diploma, 14 December 1990 •Certificate of Training, 15 November 1990 •Certificate of Training, from 27 November 1989 to 8 December 1989 •Army Achievement Medal, 1 December 1989•Orders Number 187-23, 27 September 1989 •DD Form 4, 20 September 1989 •Permanent Orders Number 21-01, 10 April 1989 •Army Commendation Medal Certificate, 28 March 1989 •Certificate of Achievement, 28 November 1988 •Oath of Extension of Enlistment, 24 August 1988 •Certificate of Achievement, 24 February 1988 •DA Form 1059, 19 June 1987 •Noncommissioned Officers' Academy Certificate, 19 June 1987 •DD Form 4, 2 September 1986 •Permanent Orders Number 42-6, 3 April 1986 •DD Form 214, ending on 18 April 1986 •DA Form 2-1, page 1 and 2 •Recognition and Appreciation Certificate Bold Eagle 1986 •Permanent Orders Number 35-4, 26 April 1985 •Army Achievement Medal Certificate, 11 April 1985 •KG-84 Operators Training Certificate, from 6 January to 20 January 1985 •Standard Remote Terminal Equipment Advanced Maintenance CourseCertificate, from 12 October to 25 October 1984 •A-40 Hour Headstart Orientation Certificate, from 5 December to 16 December 1983 •Advanced German Part II Certificate, from 7 September 1983 to 22 October 1983 •Effective Supervision Certificate, from 11 September to 28 September 1983 •Headstart German Basics I, from 21 August 1983 to 7 September 1983 •DD Form 1966 (Application for Enlistment Armed Forces of the UnitedStates), 19 August 1992 •DA Form 268, dated 1 October 2012 •Tab B •Applicant Declaration •Tab C •Email correspondence •Memorandum, Subject: Request for Redress/Relief pursuant to Article 138 ofthe UCMJ, 25 February 2012 •Tab D •Medical Record – Health Partners Specialty Center Neurology Clinic •Tab E •U.S. Army Human Resources Command (HRC) Fiscal Year 2010 (FY10)Chief Warrant Officer 3 and 4 Selection Board Results •Tab F •DA Form 2173 (Statement of Medical Examination and Duty Status) •Medical Record -Emergency Room •DA Form 2823 (Sworn Statement) •Tab G •DA Forms 705 (Army Physical Fitness Test (APFT)) Scorecards •Tab H •Memorandum, Subject: Physical Training Cards •Tab I •Army Regulation (AR) 40-501 (Standards of Medical Fitness) •Excerpt AR 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) •Excerpt AR 600-8-29 (Officer Promotions) •Excerpt AR 350-1 (Army Training and Leader Development) •Excerpt AR 600-8-29 (Officer Promotions) •Tab J •Excerpt UCMJ Article 133 – Conduct unbecoming of an officer and gentleman •Tab K •Email correspondence •Tab L •DD Form 1172 (Application for Unfirmed Services Identification Card) •Tab M •Email correspondence •Tab N •Department of Defense Financial Management Regulation 7000.14, Volume7A, Chapter 27 Family Separation Allowance (FSA) Summary of MajorChanges •Tab O •DA Form 2142 (Pay Inquiry), 10 February 2008 •DA Form 4187 (Personnel Action), 10 February 2008 •Orders Number 05-160-00203, 9 June 2005 •Orders Number 05-227-00201, 15 August 2005 •Orders Number 05-348-00004, 14 December 2005 •Orders Number 115-115, 25 April 2007 •Orders Number 122-010, 2 May 2007 •DD Form 1561 (Statement to Substantiate Payment of FSA, 24 February 2009 •Orders Number E-08-703972, 3 August 2007 •Orders Number E-08-703972A01, 9 August 2007 •Tab P •Department of Veterans Affairs (VA) Rating Decision, 21 October 2015 •Tab Q •Memorandum, Subject: Supplemental Guidance to Military Boards forCorrection of Military/Naval Records Considering Discharge UpgradeRequests by Veterans Claiming Post Traumatic Stress Disorder (PTSD) •Memorandum, Subject: Clarifying Guidance to Military Discharge ReviewBoards and Boards for Correction of Military/Naval Records ConsideringRequests by Veterans for Modification of their Discharge due to MentalHealth Conditions, Sexual Assault or Sexual Harassment •Tab R •DA Form 31 (Request and Authority for Leave), 15 February 2013 •DA Form 5016 (Chronological Statement of Retirement Points), 6 March 2022 •Memorandum, Subject: Commander's Endorsement for Collection ofIndebtedness, 14 September 2012 •Memorandum, Subject: Recommendation for Collection of Indebtedness, 14 September 2012 •Memorandum, Subject: Remission or Cancellation of Indebtedness, 2 July 2012 •Pay available for debt collection •Excerpt AR 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) •Periodic Health Assessment •Medical Records •DA Form 3349 (Physical Profile), 15 April 2009 •DA Form 67-9 (Officer Evaluation Report (OER)), covering 10 February 2008to 9 February 2009 •DA Form 67-9, covering 10 February 2009 to 9 February 2010 •Email Correspondence •DA Form 1559 (Inspector General Action Request), dated 9 January 2012 •Email Correspondence •Memorandum, Subject: Request MOS Medical Retention Board (MMRB),Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) forAdjudication, 21 December 2009 •HRC Fiscal Year 10 (FY10) CW3 and 4 Board Results, 15 June 2010 FACTS: 1.The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code(USC), 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 theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states through counsel in pertinent part, he should have beenpromoted to the rank of CW3 upon medical retirement and that he was deniedpromotion due to an erroneous FLAG for failure of an incomplete Army Physical FitnessTest (APFT). Additionally, the Article 15 for alleged violation of Article 133, UCMJshould be removed from his record as he was suffering from behavioral healthconditions, which qualifies him for consideration and relief pursuant to the HagelMemorandum. a.The applicant began his first enlistment on 2 March 1983 (Delayed EntryProgram) with active duty beginning on 23 May 1983. He commissioned as a Warrant Officer WO1 on 27 June 2003, and CW2 on 27 June 2005. His military service consists of an enlisted DD Form 214, a National Guard Bureau Form 22 (Report of Separation and Record of Service), and lastly an officer DD Form 214 (over 30 years with over 24 years Active Duty). b.The applicant was medically retired from the U.S. Army, effective 9 July 2013. Hewas retired in the rank of CW2. He filed an Article 138 complaint with his command to address a number of issues, some of which are directly related to this petition for relief. c.The applicant should be retroactively promoted to CW3 and the Article 15 dated 15 March 2013, should be removed from his OMPF for the following reasons: (1)He was erroneously flagged for an incomplete APFT, which prevented him from being promoted to CW3 despite having been selected for promotion. (2)He did not violate Article 133, UCMJ as alleged in the Article 15. (3)At the time of his discharge, he was suffering from behavioral health conditions, which qualifies him for consideration and relief pursuant to the Hagel Memorandum. d. In May of 2009, he was seen by Dr. for "episodes of sudden loss of consciousness." e. In 2010, he was selected ahead of his peers for promotion to CW3 with an effective date of 27 June 2011. f. Prior to his selection for promotion, in September of 2009, he was ordered totake an APFT without modification, despite having been issued a permanent profile (dated 30 June 2009) which precluded him from conducting the 2-mile run and sit-up events. During the 2-mile run, he collapsed and lost consciousness. Thankfully, he received the appropriate medical attention and regained consciousness at the hospital. Unbeknownst to him, he had been issued the permanent profile prior to the APFT, but it had never been communicated to him. Prior to this incident, the applicant had never failed a PT test. g. Obviously, it was inappropriate for the command to have ordered him to take the unmodified APFT given the existence of the permanent profile. The fact that the profile precluded him from taking an unmodified version of the APFT combined with the fact that he collapsed during the test due to an underlying medical condition rendered that test entirely erroneous. He failed to complete that test through no fault of his own. The memorandum signed by CPT confirms that the applicant had been unable to take the APFT "due to his medical profile limitations." h. Notwithstanding this erroneous APFT, the applicant's command initiated a FLAG for failing to complete the APFT, which prevented him from being promoted to CW3. i. His OMPF reflects that he was found guilty of violating Article 133, UCMJ at an Article 15 dated 15 March 2013. Specifically, the Article 133, UCMJ violating that he was found guilty of alleged: "In that you, did, at or near Aberdeen, South Dakota, and at or near Fort Riley, KS, between on or about 1 January 2008 and on or about 30 June 2011, fail to adequately address the erroneous receipt of FSA, conduct which is unbecoming of an officer and a gentleman. This is in violation of Article 133, UCMJ." j.There are several errors associated with the Article 15 that warrant relief. k.First, as the applicant details in his declaration, he was forced to switch lawyers during the Article 15 process and his lawyer was not allowed to speak on his behalf at the Article 15 hearing. This constitutes a serious infringement on his right to counsel and his right to present a defense and undoubtedly prejudiced the outcome of the Article 15. l.Next, the government did not prove that he violated Article 133, UCMJ beyond a reasonable doubt. (1)The Manual of Courts Martial (MCM) provides that the elements of Article133, UCMJ are as follows: •That the accused did or omitted to do a certain act; •That, under the circumstances, the act or omission constituted conductunbecoming an officer and gentleman. (2)The MCM explains that "conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer's character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person's standing as an officer. (3)The government presented no evidence whatsoever that his actions, even if true, constituted unbecoming conduct as defined by the MCM. This is a factual deficiency that renders the finding of guilt void. (4)Moreover, he presented evidence that he did, in fact, make multiple attempts to "address" the FSA allowance at issue. The applicant has outlined those efforts in his declaration at and his Article 138 complaint. Email traffic between the applicant and the finance office, illustrates that he did, in fact, attempt to clarify the situation, without success. (5)Finally, the evidence indicates that he was actually entitled to the FSA allowance at issue. His daughter was under 21 years of age during the relevant time period (2008-2011 per the Article 15 charge sheet) as verified by the Defense Enrollment Eligibility Reporting System format. She therefore qualified as a "dependent" as outlined in the "Military Pay Secondary Dependency Guide." and DODFMR 7000.14-R.As evidenced by the documents contained in his "Pay Inquiry", he was on TemporaryDuty (TDY) orders during the relevant time period (2008-2011 per the Article 15 chargesheet) and was therefore entitled to FSA as set forth in DODFMR 7000.14-R. Thetotality of the evidence demonstrates that he was, in fact, entitled to claim his daughterfor FSA during the relevant time period. It was unfair, unjust, and inequitable for thecommander to have found him guilty of failing to "address" an allowance to which hewas, in fact, entitled. m.The applicant has been diagnosed with PTSD and was medically retired based on the finding that his PTSD (among other conditions) rendered him unfit for continued service. 3.A review of the applicant's available service records reflects the following: a.Having had prior enlisted service with the Regular Army, Army National Guard, and U.S. Army Reserves, on 27 June 2003, he was commissioned as a Reserve warrant officer and executed an oath of office in the rank of warrant officer one (WO1). b.On 15 September 2004, the U.S. Army Human Resources Command (HRC)issued a Memorandum for Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). c.On 25 April 2005, HRC issued Orders Number B-04-500976 promoting him to therank of Chief Warrant Officer Two (CW2), effective on with a Date of Rank (DOR) of 27 June 2005. d.On 30 June 2009, DA Form 3349 shows he was issued a permanent medicalprofile restricting his physical limitations due to illness/disease. He was not able take the APFT 2-mile run or sit-ups, but could complete the push-ups, alternate event walk or bike. The profile shows his medical conditions as: •Brain Condition •Seizure Disorder •Back condition •Mood Disorder The associated medical records show his medical conditions as: •Traumatic Brain Injury •Back Pain •Obstructive Sleep Apnea •Depression/Anxiety •Seizure Disorder e.On 25 February 2013, a PEB convened finding the applicant physically unfit recommending a rating of 60 percent and that he be placed on the TDRL with a reexamination during November 2013. His rank is shown as CW2. f.On 8 March 2013, the applicant accepted non-judicial punishment under the provisions of Article 15, UCMJ. DA Form 2627 reflects he violated Article 133 UCMJ (Conduct which is unbecoming of an officer and a gentleman) for failure to adequately address the erroneous receipt of FSA. Included with the Article 15 are supporting documents from the CID report. g.On 16 May 2013, Headquarters, 1st Infantry Division and Fort Riley issuedOrders Number 136-0014 honorably releasing him from active duty, effective 9 July 2013 because of physical disability under the provisions of Title 10, USC, section 1202. h.DD Form 214, ending on 9 July 2013 reflects an honorable retirement fordisability, temporary (enhanced). DD Form 214, item 4a (Grade, Rate or Rank) shows "CW2" and item 12 (Record of Service) shows active duty service this period from 27 June 2003 to 9 July 2013 with a net active service this period of 10 years, 1 month, and 12 days and prior active service of 12 years, 6 months, and 18 days with 7 years, 8 months, and 8 days of prior inactive service. i.On 7 December 2015, the U.S. Army Physical Disability Agency issued OrdersNumber D341-29 removing him from the TDRL, effective 7 December 2015 due to permanent physical disability and permanently retiring him at the rank of CW2 with 70 percent disability under the provisions of Title 10, USC, section 1201. 4.The applicant provides the following: a.Legal Counsel Supplemental Statement provides an extensive background description and of the applicant's request to retroactively be promoted to the rank of CW3 and the removal of the Article 15 for violation of Article 133, UCMJ. b.Tab A - Service Records and Allied Documents provides: (1)DD Form 2648 service document reflective of his pre-separation counselingconducted at Fort Riley, KS. (2)Memorandum, Subject: Classification of USAR Warrant Officer, dated 7 May 2013, reflective of his classification as a Reserve Warrant Officer with the military occupational specialty (MOS) 915A (Automotive Maintenance Warrant Officer). (3) Finance timeline showing the amounts of FSA received by the applicant from 2005 - 2011 (4) Orders Number 122-010 dated 2 May 2007, showing Orders Number 115-115 was amended reassigning the applicant to the 452nd Ordnance Company with a proceed date of 21 May 2007. (5) Orders Number 115-115 dated 25 April 2007, showing he was reassigned to a unit in MN for deployment in support of Operation Iraqi Freedom. (6) Orders Number 05-348-00004 dated 14 December 2005, showing he was reassigned to the 423rd Transportation Company for deployment in support of Operation Iraqi Freedom with a proceed date of 10 February 2006. (7) DA Form 4444 dated 12 October 2011, showing a pay collection for FSA the he was not authorized for his 19 year old dependent child and his wife accompanied him to the Warrior Transition Battalion. (8) FSA Recoupment List reflective of the orders the applicant used to establish entitlement to FSA. (9) DA Form 5960 dated 29 September 2011 reflective of his request for a change or recertification for Basic Allowance for Housing with dependents. The form shows his dependent daughter resided in and his wife was at , . (10) DD Form 1561 dated 29 September 2011, showing the applicant requested FSA-Temporary and his dependent child was not in the legal custody of another person. He listed his dependents location as , . (11)Handwritten Note submitted as exhibit 15 of the CID report. (12)DD Form 1351 dated 23 January 2008, showing the applicant departed , enroute to , , on 28 September 2007 and return to , , on 22 January 2008. (13) DFAS Travel Voucher, covering 31 January 2006 to 6 May 2007, showing he was paid $4,122.14 for a travel claim. (14) Orders Number 05-160-00203 dated 9 June 2005, showing he was deployed in a temporary change of station status and was assigned to the , CONUS replacement. (15) Orders Number 05-227-00201 dated 15 August 2005 which revoked Orders Number 05-160-00203 pertaining to his mobilization. (16) Orders Number 05-348-00004 dated 14 December 2005, showing he was reassigned and/or deployed to the 423rd Transportation Company, Fort Carson, CO. (17) Orders Number E-08-703872 dated 3 August 2007, shows he was to proceed on TDY at , , for a period of 15 days. (18) Orders Number E-08-703872A01 dated 8 August 2007, amended Orders Number E-08-703872 authorizing taxi usage. (19) Orders Number 084848 dated 16 September 2011; shows he was to proceed on TDY to attend annual training. (20) Orders Number 231-001 dated 19 August 2010, shows he was assignedto A Company, Warrior Transition Battalion, Fort Riley, effective 23 August 2010. (21) CID Form 44 dated 22 February 2012, investigation number 0330-11-CID025-52552 which confirm his total amount owed to the U.S. Government as $12,691.66 as a result of unauthorized family separation pay. (22) DA Form 268 dated 11 October 2012, showing he was flagged for an adverse action. (23) ORB, dated 26 November 2012, showing his personnel information to include awards, decorations, and assignments. (24) SGLV 8600 dated 19 December 2012, showing he had multiple injuries beginning in 2005. (25) Prudential SGLI Election and Certificate dated 4 December 2012, showing the percentage of payments to each of his family members. (26) DD Form 93 (Record of Emergency Data) dated 4 December 2012 service record during his service as a warrant officer. (27) Department of the Army SGLV Spouse Letter dated 4 December 2012, showing he elected another beneficiary in addition to his spouse. (28) Prudential SGLI Election and Certificate, dated 3 November 2011, service record. (29)DD Form 93 dated 3 November 2011, service record. (30)OER covering 10 February 2010 to 9 February 2011 evaluating him as asenior automotive maintenance technician. (31)DD Form 93 dated 3 November 2011, service record. (32)SGLV 8286 dated 27 August 2010, service record. (33)Orders Number R-08-087693 dated 11 August 2010, shows the applicant was released from assignment to the 452nd Ordinance Company and assigned to the 452nd Ordinance Company Ammunition. (34) Orders Number 052601 dated 12 March 2010, showing he was approved to travel from , to , . (35) OER covering 10 February 2009 to 9 February 2010 showing he was evaluated as a senior automotive maintenance technician. (36) OER covering 10 February 2008 to 9 February 2009, showing he was evaluated as an automotive warrant officer. (37) Medical Records pertaining to the applicant's traumatic brain injury, back pain, obstructive sleep apnea, depression/anxiety. (38) OER, covering 11 February 2006 to 10 February 2007, showing he was evaluated as a unit maintenance technician. (39) Orders Number R-06-373802A02 dated 3 August 2006, amended Orders Number R06373802 changed his period of active duty from 4 years, 4 months, and 13 days to indefinite. (40) Orders Number R-06-373802A01 dated 17 April 2006, amended Orders Number R06373802 by changing his active duty commitment to 4 years, 4 months, and 13 days. (41) OER, covering 27 June 2005 to 10 February 2006, showing he was evaluated as a unit maintenance technician. (42) DA Form 1506 dated 23 September 2005, service record reflective of his service creditable for retired pay. (43)OER covering 27 June 2004 to 26 June 2005, showing he was evaluatedas a unit maintenance officer. (44)OER covering 27 June 2003 to 26 June 2004, showing he was evaluatedas a unit maintenance technician. (45)Certificate of Achievement dated 20 February 2004, presented to theapplicant for outstanding performance while attached to the 191st Ordnance Battalion. (46)DA Form 1059 showing the applicant attended and completed the UnitMaintenance Officer Warrant Officer Basic Course. (47)Ground Supervisor Course Certificate dated 5 December 2003, showinghe completed the Unit Level Logistics System – Ground Supervisor Certification Course. (48)Maintenance Leader Course Certificate dated 20 December 2003,showing he completed the Maintenance Leader Course. (49)Orders Number E-08-303941A01 dated 12 September 2003, amendedOrders Number E-08-303941 authorizing in and around mileage. (50)Certificate of Appointment dated 27 June 2003, showing he was appointedas a warrant officer in the USAR. (51)Orders Number R-07-374202 dated 17 July 2003, showing he was in anActive Guard/Reserve status and assigned to the 785th Medical Detachment. (52)DA Form 2173 dated 11 July 2003, showing he sustained a knee injury inthe Line of Duty (LOD). (53)LOD dated 14 July 2003, reviewed and approved for LOD injury. (54)DA Form 2823 dated 18 June 2003, completed in conjunction with hisLOD. (55)DD Form 689 dated 26 June 2003, wherein he went to see a provider for knee pain. (56) Orders Number E-05-301993 dated 13 May 2003, authorized TDY at , , for a period of 31 days as an enlisted Soldier. (57)Certificate of Graduation from Warrant Officer Candidate School, dated 27 June 2003 service record. (58)DD Form 214, ending 26 June 2003 service record during his enlistedperiod. (59)Orders Number D-06-390124 dated 25 June 2003 discharge orders from USAR/Active Guard/Reserve (AGR). (60)Orders Number R-06-373802 dated 25 June 2003, ordered him to AGRstatus for a period of 3 years. (61)Orders Number R-08-005639A01 dated 15 August 2002 pertaining to hisenlisted service. (62)Unit Level Logistics System-Ground (Sustainment) Certificate, from 3 December 2001 to 7 December 2001 service record. (63)DA Form 2-1 showing his personnel data. (64)DA Form 638 he was recommended for the Army Achievement Medal. (65)Basic Operator Course Diploma dated 1 May 2001, showing hissuccessful completion. (66)Orders Number R-03-101212 dated 5 March 2001, pertaining to hisenlisted service. (67)DA Form 2166-7 covering March 2000 to February 2001 pertaining to hisenlisted service. (68)Certificate of Achievement service record. (69)Company Training Course Diploma dated 3 November 2000 service record. (70)USAR Unit Pay Administration Course Diploma dated 21 September 2000service record. (71)Orders Number 227-47 dated 14 August 2000 service record during his enlisted period. (72)Basic Unit Movement Officer Training Certificate dated 16 February 2000 service record. (73)DA Form 1059 dated 14 January 2000 service record during his enlisted service. (74)Unit Level Logistics Course Certificate covering 9 January 2000 to 14 January 2000 presented during his enlisted service. (75)DA Form 2A dated 2 October 1999 showing his personnel data. (76)AGR Entry Training Diploma dated 3 September 1999, showing histraining completion. (77)Orders Number R-08-005639 dated 16 August 1999 service record during his enlisted service. (78)Certificate of Achievement dated 24 June 1999 service record. (79)Motor Transport Operator Course Certificate dated 27 May 1999 service record. (80)DA Form 5646-R dated 13 March 1999, shows he volunteered for AGRduty. (81)DD Form 4 dated 9 February 1999 shows he enlisted in the USAR. (82)NGB Form 22 dated 8 February 1999, service record during his enlistedservice in the Army National Guard. (83)ARNG Interstate Transfer service record during his enlisted service.(84)DA Form 2-1 showing his personnel data.(85)Associates Degree dated 10 August 1998 service record allied document.(86)Orders Number 209-156 dated 28 July 1998 service record during hisenlisted service. (87)Associates Degree Transcript dated 28 January 2000, showing he wasawarded an occupational certificate. (88)Diploma of Occupational Proficiency dated 29 May 1998 service record. (89)DA Form 2166-7 for the period December 1996 to November 1997pertaining to his enlisted service. (90)DA Form 2166-7 for the period December 1995 to November 1996 pertaining to his enlisted service. (91)The remainder of Tab A pertain to the applicant's enlisted service records. (92)DA Form 268 dated 1 October 2012, shows his flag was removed due tohis case being closed favorably. c.Tab B - provides a declaration from the applicant pertaining to his service in theRegular Army, USAR, ARNG, educational achievements and assignments. The entire timeline is available for the Board's review in the supporting documents. d.Tab C: (1)Provides email correspondence pertaining to the ongoing CID investigationand harassment from the A Company, Warrior Transition Battalion, commander. (2)Memorandum Request for Redress/Relief pursuant to Article 138 of theUCMJ, dated 25 February 2012 he addresses the CID Report and Article 138 UCMJ while assigned to the Warrior Transition Battalion, Fort Riley, KS. e.Tab D - provides a medical letter from the Health Partners Specialty CenterNeurology Clinic dated 29 May 2009, noting the applicant's medical history and condition of seizures with sudden loss of consciousness. f.Tab E - provides the HRC FY10 Chief Warrant Officer 3 and 4 Selection BoardResults, wherein he is listed for promotion to CW3. g.Tab F – provides: (1)DA Form 2173 dated 21 May 2009, showing he became unresponsive whilerunning. (2)Emergency Room medical records dated 21 May 2009, showing he becameunresponsive while training with the guards. He did have a seizure history. Initially unresponsive but later resumed responsiveness quickly. (3)DA Form 2823 dated 21 May 2009, wherein the author states in pertinentpart, the applicant during the 2-mile run event was doing well at the half-way point. Upon checking on the applicant's status towards the end of the run he was observed to be swaying left and right and he ultimately collapsed. h.Tab G – provides: (1)APFT Scorecards from 8 September 2003 to 1 December 2003 (not scored)and 15 May 2004 to 18 July 2005. i.Tab H - provides a Memorandum, Subject: Physical Training Cards authorizinghim to proceed with the Medical Board Evaluation without the AFPT scorecard due to his medical profile limitations. j.Tab I – provides excerpts from the following: (1)AR 40-501 (Standards of Medical Fitness) with emphasis on 2-26Neurological disorders, mood disorders, anticonvulsants for treatment of seizure disorders, profile codes. (2)AR 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) withemphasis on a flag is not required for a Soldier on a permanent or temporary profile that precludes taking the APFT. A flag is not required when the commander determines the Soldier cannot be administered an alternate APFT because of conditions beyond the Soldiers control. (3)AR 600-8-29 (Officer Promotions) with emphasis on officers having validpermanent or temporary profiles as determined by appropriate medical personnel, precludes administration of the APFT, even in an authorized modified form, are deemed to have failed to take the APFT through no fault of their own. The office preparing the DA Form 268 must notify the officer and the promotion cannot be delayed more than 6 months unless the Secretary of the Army (SA) or his designee grants further delay. (4)AR 350-1 (Army Training and Leader Development) with emphasis onpersonnel being excused from physical training during periods of temporary profiles or permanent medical limitations in accordance with AR 40-501. k.Tab J – provides an excerpt UCMJ Article 133 – Conduct unbecoming of anofficer and gentleman as allied documents in support of the applicant's Article 15. l.Tab K – provides email correspondence related to payment of FSA. The email isprovided in the supporting documents for the Board's review. m.Tab L – provides DD Form 1172 dated 26 August 2011 wherein he requestsidentification cards for his dependents. n.Tab M – provides email correspondence pertaining to FSA and the proper formsbeing submitted at Fort Carson, CO, to stop the entitlement. However, the Defense Finance and Accounting Service failed to terminate the FSA. o.Tab N provides DODFMR 7000.14-R, Volume 7A, Chapter 27 FSA Summary ofMajor Changes. p.Tab O – provides: (1)DA Form 2142 dated 10 February 2008, showing an inquiry to stop FSA andstart FSA-T, dependents address during deployment and TDY was , . (2)DA Form 4187 dated 10 February 2008, showing a request to stop FSA. q.Tab P – provides the VA Rating Decision dated 21 October 2015,shows his ratedconditions as PTSD, obstructive sleep apnea, thoraco-lumbar strain, tinnitus, gastroesophageal reflux disease, ulnar nerve entrapment, idiopathic peripheral neuropathy left and right foot, complex partial seizures, and myositis. r.Tab Q – Service Records and Allied Documents provides: (1)Memorandum, Subject: Supplemental Guidance to Military Boards forCorrection of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD provided in support of the applicant's request. (2)Memorandum, Subject: Clarifying Guidance to Military Discharge ReviewBoards and Boards 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 provided in support of the applicant's request. s.Tab R – provides: (1)DA Form 31 dated 15 February 2013, request for permissive TDY forassessment, training, and issue of mobility devices. (2)DA Form 5016 dated 6 March 2022, showing he had 29 years, 4 months, and10 days of qualifying service for retirement. (3)Memorandum, Subject: Commander's Endorsement for Collection ofIndebtedness dated 14 September 2012, wherein the immediate and intermediate commander's recommended accelerated collection of his debt. (4)Memorandum, Subject: Remission or Cancelation of Indebtedness dated 2 July 2012, wherein the HRC, Chief, Operations Management Division denied his debt cancellation based on fraud or larceny. (5)Pay available for debt collection service record which shows available moniesto repay his debt. (6)Excerpt AR 600-8-2 highlighting circumstances regarding nontransferableFLAGs. (7)Periodic Health Assessment reflective of his medical conditions wherein hereports a period of unconsciousness, vertigo, being status post TBI. The form shows he was not deployable. (8)Medical Records showing a previous medical history of TBI. (9)Email Correspondence pertaining to the APFT that was administered and itbeing invalid and as a result of the APFT he had a seizure during the 2-mile run. The email is provided in its entirety in the supporting documents for the Boards review. (10)DA Form 1559 dated 9 January 2012, submitted in support of hiscontested APFT. (11)Email Correspondence pertaining to the initiation of his Flag and removalof his name from the promotion list. The email is provided in its entirety in the supporting documents for the Board's review. (12)Memorandum, Subject: Request MMRB, MEB/PEB for Adjudication, dated21 December 2009, wherein he alleges the commander was trying to prevent his eligibility to benefits with a non-duty related fit for duty. 5.On 1 November 2022, HRC, Chief, Officer Promotions Board Announcements,Support, and Promotion Orders, provided an advisory opinion recommending approvalof the applicant's request stating: a.Based on a review of the information provided, our records and the systems available to HRC Officer Promotions, we find that the applicant's request for retirement to the rank of CW3 does have merit (unless proven otherwise ineligible). On the day he was placed on the TDRL, should have been the very day he should have received a minimum of 50 percent of his disability payments as a CW3. The retired grade of rank on his orders (16 May 2013) should have reflected CW3 not CW2. The applicant's PDRL rank should have also reflected CW3. Promotion orders are not produced for these types of retirements, the higher ranks are reflected in the TDRL and the PDRL orders of those proven to have been selected and on an approved list for promotions. b.This type of correction is not within our purview. We can only speculate that whoever produced the TDRL and PDRL orders inadvertently made the error of not changing his rank from CW2 to CW3 at the time. Due to this affirmation, we recommend that he request a correction of his DD Form 214 to reflect the retirement Grade and Rank CW3 (based on a previous promotion selection). We believe that the applicant should also contact the U.S. Army Physical Disability Agency for assistance with correcting or amending his orders (if applicable), it is responsible for confirming that any impending requirement or criteria's have been met. c.We recommend full relief (unless proven otherwise ineligible) pursuant to Title10, USC, section 1372 (3), which states "The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination, again the provisions of Title 10, USC, section 1372 does not require or authorize production of actual promotion orders, therefore, promotion orders will not be produced. 6.On 25 November 2022, the applicant was provided with a copy of the advisoryopinion to provide a response. 7.On 6 December 2022, the applicant's legal counsel provided a response to theadvisory opinion. He acknowledged the advisory opinion from HRC and concurred withthe recommendation. He urges the Board to grant relief favorable to the applicant'srequest. BOARD DISCUSSION: 1.The applicant's request for a personal appearance was carefully considered. In thiscase, the evidence of record was sufficient to render a fair and equitable decision. As aresult, a personal appearance before the Board is not necessary to serve the interest ofequity and justice in this case. 2.After reviewing the application, all supporting documents and the evidence foundwithin the military record, the Board determined that partial relief was warranted. Onepossible outcome was to grant relief. However, the majority of the Board membersconcurred with the Human Resource Command advisory opinion founding sufficientevidence of an error to warrant a recommendation for partial relief. Based on thepreponderance of documentation available for review, the Board determined theevidence presented sufficient to warrant recommendation for partial relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented sufficient to warrant arecommendation for partial relief. As a result, the Board recommends that allDepartment of Army records of the individual concerned be corrected by•amending his DD214 for the period 9 July 2013 to show Chief WarrantOfficer/(CW3), date of rank 9 July 2013•correcting his rank on the Permanent Disability Retirement List to show ChiefWarrant Officer/(CW3)2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to any other relief not stated above. Microsoft Office Signature Line... I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so. 2.Title 10, USC, section 1372 (Grade on Retirement for Physical Disability: Membersof the Armed Forces), states unless entitled to a higher retired grade under some otherprovision of law, any member of an armed force who is retired for physical disabilityunder section 1201 or 1204 of this title, or whose name is placed on the TDRL undersection 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of thefollowing: (3) The permanent regular or reserve grade to which he would have beenpromoted had it not been for the physical disability for which he is retired and which wasfound to exist as a result of a physical examination. 3.AR 600-8-104 (Army Military Human Resource Records Management (AMHRR))section 3-6 states Only documents pertaining to a Soldier's military career perappendices B and C will be filed in the AMHRR. No more than one copy of a documentwill be uploaded into the AMHRR, although a document may be viewed from differentfolders within iPERMS. Once properly filed in the AMHRR (as defined in table 3–1), thedocument will not be removed from the record unless directed by one of the following:Boards of the Army Review Boards Agency such as the Army Board for Correction ofMilitary Records (ABCMR), Army Discharge Review Board, Department of the ArmySuitability Evaluation Board, Army Special Review Board, and the Department ofDefense Physical Disability Review Board. 4.AR 635-5 (Separation Documents) in effect at the time prescribes the separationdocuments that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. DD Form 214, item 4 (Grade,Rate or Rank) enter the active duty grade or rank and pay grade at time of separation. 5.Department of Defense Financial Management Regulation Chapter 27 (FamilySeparation Allowance (FSA) provides that FSA is compensation for added expensesincurred because of an enforced family separation. FSA is payable to members withdependents. FSA is payable in addition to any other allowance or per diem, to which amember may be entitled. FSA is payable to qualified members serving inside or outsidethe United States. It is not authorized when a member performs duty at any stationunder permissive orders. FSA-T is payable when a member is on TDY or TemporaryAssigned Duty (TAD) away from the Permanent Duty Station continuously for more than30 days, and the member's dependents do not reside at or near the TDY or TAD station. 6.AR 27-10 (Military Justice) states in chapter 3 Use of nonjudicial punishment isproper in all cases involving minor offenses in which nonpunitive measures areconsidered inadequate or inappropriate. If it is clear that nonjudicial punishment will notbe sufficient to meet the ends of justice, more stringent measures must be taken.Prompt action is essential for nonjudicial punishment to have the proper correctiveeffect. Nonjudicial punishment may be imposed to— a. Correct, educate, and reformoffenders whom the imposing commander determines cannot benefit from less stringent measures. A commander’s decision on whether to file a record of nonjudicialpunishment on the performance section of a Soldier’s official military personnel file(OMPF) is as important as the decision on whether to impose nonjudicial punishment itself. In making a filing determination, the imposing commander mustweigh carefully the interests of the Soldier’s career against those of the Army to produceand advance only the most qualified personnel for positions of leadership, trust, andresponsibility. In this regard, the imposing commander should consider the Soldier’sage, grade, total service (with particular attention to the Soldier’s recent performanceand past misconduct), and whether the Soldier has more than one record of nonjudicialpunishment directed for filing in the restricted section. 7.AR 15-185 (ABCMR) prescribes the policies and procedures for correction of militaryrecords by the Secretary of the Army, acting through the ABCMR. The ABCMR may, inits discretion, hold a hearing or request additional evidence or opinions. Additionally, itstates in paragraph 2-11 that applicants do not have a right to a hearing before theABCMR. The Director or the ABCMR may grant a formal hearing whenever justicerequires. //NOTHING FOLLOWS//