IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220002890 APPLICANT REQUESTS: * Removal of the General Officer Memorandum of Reprimand (GOMOR) from his service record * Reversal of the Army Grade Determination Review Board (AGDRB) decision to place him on the Retired List in the rank/grade of chief warrant officer two/CW2 and restoration of his rank to CW3 with all rights and entitlements retroactive to the date of the AGDRB * Correction of his records to show he was placed on the Retired List in the rank/grade of CW3 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Memorandum from the Applicant to All Reviewing Authorities, subject: Additional Documentary Evidence in Support of Case (70% Department of Veterans Affairs (VA) Disability for Service-Connected Post-Traumatic Stress Disorder (PTSD)) * Letter of Commendation * Two Character References * PTSD Disability Benefits Questionnaire * DA Form 638 (Recommendation for Award) and Certificate for the Meritorious Service Medal (MSM) (3rd Award) (Retirement Award) * VA Rating, page 5 of 32 * Kurta Memorandum and Attachment * Informal Army Regulation (AR) 15-6 Investigation Findings, page 1 * Separation/Dissolution of Marriage [Intent] FACTS: 1. The applicant states he believe the 17 November 2021 [in effect 15 November 2021] AGDRB decision is unjust and does not correctly apply the relevant standards to the facts of his case. He had a single incident of misconduct (improper relationship) that occurred while he was a CW2. This single mistake in judgment was exacerbated by his PTSD and by his separation and potential divorce following two failed attempts at in vitro conception of a child. a. The other party was not a service member, and the event did not affect his unit regarding either good order and discipline, nor mission accomplishment. Following that incident, he had 3 years of exemplary service as shown by his ratings, awards, and commendations received during that period. Further, he does not believe the AGDRB properly considered the adverse effect PTSD can have on a Soldier's behavior. He has attached a submission that was provided to the AGDRB, which explains the situation in greater detail. Everything he submitted to the AGDRB is applicable to this request. b. Additionally, he attached a diagnosis from the VA confirming his PTSD and that this condition can contribute to poor decisions such as the one he made. He also attached letters that state he served successfully as a CW3. Given all these factors, he believes the evidence is sufficient to overcome the single isolated incident. He humbly requests this Board consider the materials he submitted and reverse the AGDRB decision. 2. The applicant provides the following documents in support of his request: a. Personal Statement indicating neither the AGDRB nor his unit had his VA disability [rating document]. He requests this Board review the VA [Rating] assigning him a 70% disability evaluation due to the impact of PTSD on his life. He earned the Combat Action Badge for his actions in combat. Additionally, he states: (1) He was involved in a single incident (an improper relationship with a civilian not military affiliated) during a very vulnerable and challenging time in his life. He believes the incident was exacerbated by severely underdiagnosed PTSD and personal problems at the time. (2) He has attached additional supportive corroborative evidence of his state of mind. Although his mental health challenges were explained in documents by doctors, this was not certified by the VA until 25 August 2022. He believes the AGDRB decision is unjust and does not correctly apply the relevant standards to his case, predicated on his recent diagnosis by the VA. (3) Department of Defense (DOD) put new policies in place regarding how review boards should handle petitions dealing with cases involving PTSD. Secretary Hagel issued the initial guidance on 13 September 2014 and the Under Secretary of Defense supplemented those instruction on in August 2017. Both memoranda instructed Discharge Review Boards to give sympathetic consideration to petitions for clemency where PTSD is involved because they recognize that PTSD can be a significant contributing factor to misconduct that is not under the Soldier’s control. While these memoranda are directed to Discharge Review Boards (DRB), they establish a DOD policy that should be applied by all agencies when dealing with adverse actions against PTSD victims. It’s important to note Defense Secretary Chuck Hagel stated, “BCM/NRs will fully and carefully consider every petition based on PTSD brought by each veteran. This includes a comprehensive review of all material and evidence provided by the petitioner.” The Under Secretary states “Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD.” Based on this guidance from DOD leadership, he requests this Board extend him clemency as his combat related PTSD substantially contributed to his emotional state and error in judgment. b. Memorandum to all Reviewing Authorities, subject: Additional Documentary Evidence in Support of Case (70 Percent VA Disability for Service-Connected PTSD) indicating: * The Grade Determination Board did not have the attached (VA Rating page 5 of 32) due to the lack of medical care he received * Please review the attached VA assessment of 70% disability and the impact of PTSD on his life due to combat action in Iraq * He had one single incident of misconduct * The VA assessment contains supportive corroborative evidence of his state of mind * Although his mental health challenges were explained in previous documents by doctors, this was not certified by the VA until 1 August 2022 * The AGDRB did not correctly apply the relevant standards to his case based on his diagnosis by the VA c. Letter of Commendation, dated 28 September 2020, thanking the applicant for his contributions during the Contamination Mitigation Table Top Exercise from 14-18 September [2020]. d. Two-character reference letters: (1) Lieutenant Colonel (LTC) states he was the applicant’s supervisor when the applicant came under investigation and he has known the applicant 2 and ½ years, but it feels as if he has known him much longer. He has witnessed the applicant’s growth personally, professionally, and morally. The applicant embodies the Army Values and frequently worked with minimal guidance or little oversight in a strategic environment and yet he was the workhorse for the “G33 section” while assigned as an operations officer. The applicant was a consummate professional and subject matter expert while interacting with Eighth Army, “ROK” partners, and subordinate commands. He projected self-confidence and enthusiasm despite the challenges presented. He performed difficult tasks effortlessly. The applicant was his “Go To” officer to get the mission done. He was a high producing officer that excelled while assigned to the “G33.” The applicant informed him about the AGDRB. The applicant’s duty performance and work ethic were excellent all the time under his supervision. While on temporary duty with him in Korea, he had the opportunity to observe the applicant coaching officers and noncommissioned officers enthusiastically on the “CBRNE COP,” which enabled the command to accomplish the mission despite the stress and pressure of the investigation. The applicant he knows character does not possess a threat to the professional image or integrity of the Army. It was his belief the applicant should retire as a CW3, because anything less would be a disgrace to justice, the Army, and our nation. (2) In a second character reference letters LTC states, he served as the applicant’s supervisor after the investigation. The applicant is the epitome of what the Army should look for in in its Warrant Officer Corps. He lived by and supported Army values. He operated at a level above his rank and required no guidance to accomplish the mission he was given. He was continuously sought out for his leadership, expertise, and competence, he served as the Combined Joint Task Force - Elimination Liaison Officer during the Korea Theater of Operations Combined Command Post 21-1. The applicant served as the Senior CBRN Warrant Officer for 20th CBRNE Command, mentoring over forty-six warrant officers within the command. Additionally, he wrote over 50 operational summaries for the command with submission to the “FORSCOM” Commanding General. The applicant consistently exceeded the standard, and he ranked the applicant in the top 5% of officers that he served with in over 19 years of service. LTC acknowledges he knew about the [applicants] allegations of misconduct and the GOMOR the applicant received. While he considers matters of this sort to be serious, the incident in no way had any negative effect on unit morale or mission accomplishment. The applicant was always professional and dedicated to carrying out his duties. The applicant should retire as a CW3. e. PTSD Benefits Questionnaire, dated 4 November 2021, showing the applicant has a diagnosis of PTSD that conforms to the DSM-5 criteria based on today’s evaluation. Occupational and social Impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood is marked. f. DA Form 638 (Recommendation for Award) and a Certificate for the MSM (3rd Award) for the period 14 August 2012 to 31 July 2022. This was a retirement Award. g. VA Rating Decision, page 5 of 32, Reason for Decision showing: Service connection for PTSD (claimed as insomnia, anxiety, adjustment disorder, depression, and mental health condition). It also shows: (1) Service connection for PTSD has been established as directly related to military service. The effective date of this grant is 1 August 2022. Service connection has been established from the day after discharge from active duty. When a claim of service connection is received within 1 year of discharge from active duty, the effective date is the day after discharge. (2) An evaluation of 70% is assigned from 1 August 2022. During his examination, dated 4 November 2021, objective findings show symptoms of insomnia, chronic sleep impairment, anxiety, and depressed mood are subsumed under PTSD diagnosis and do not rise to separate diagnoses. His symptoms are accounted for in his current evaluation. He was assigned a 70 percent evaluation for PTSD) based on: * Anxiety * Chronic sleep impairment * Depressed mood * Difficulty in adapting to a work-like setting * Difficulty in adapting to stressful circumstances * Difficulty in adapting to work * Difficulty in establishing and maintaining effective work and social relationships * Difficulty in understanding complex commands * Disturbances of motivation and mood * For getting directions * Forgetting names * Forgetting recent events * Impaired impulse control * Mild memory loss * Neglect of personal appearance and hygiene * Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, and thinking, or mood * Panic attacks more than once a week * Suspiciousness * Unprovoked irritability with periods of violence (3) The overall evidentiary record shows the severity of disability most closely approximates the criteria for a 70 percent disability evaluation. A higher evaluation of 100 percent is not warranted for a mental disorder unless the evidence shows total occupational and social impairment, due to such symptoms as: * Gross impairment in thought processes or communication * Persistent delusions or hallucinations h. Memorandum (known as the Kurta Memorandum) for Secretaries of the Military Departments, subject: Clarifying Guidance to Military Discharge Review Boards 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 with Attachment. i. A portion of one page of an Informal AR 15-6 Investigation Findings and Recommendations Continuation Sheet showing: A GOMOR stated “the relationship continued until December 2019.” “The Informal AR 15-6 Investigation Findings and Recommendations contradicted the GOMOR timeline,” “the relationship ran from 17 March 2018 through 19 February 2019 (according to the investigation report).” [The applicant stated], “I have not seen the person since February 2019, 6 months before my promotion to CW3 (1 July 2019).” j. Additionally, the 15-6 Investigations document shows according to the WhatsApp messages and text messages provided by the applicant, him and began having a sexual relationship on 17 March 2018 and continued to engage in sexual activity until 18 February 2019. k. Separation/Dissolution of Marriage showing the applicant’s spouse drafted and signed a separation document, dated 28 August 2017, with the intention of using it as proof of their date of separation. While this document is not illegal, it is not an order of the court. It will stand to prove to the court the true separation date, but it is not an absolute nor is it required by law. 3. A review of the applicant’s service record shows on 31 May 2012, the applicant executed an oath of office as a Reserve warrant officer. 4. Orders 152-360-A-1942, Headquarters United States Army Garrison, Fort Rucker. AL, dated 31 May 2012, ordered the applicant to active duty in the rank of CW1 for completion of the warrant officer candidate course. 5. On 1 April 2014, the applicant was appointed a CW2 in the Regular Army of the United States in primary military occupational specialty 740A (Chemical, Biological, Radiological, and Nuclear). 6. The applicant served in combat in Iraq from 2 April 2009 to 1 April 2010 and in Qatar from 11 June 2011 to 14 March 2012. 7. On 10 January 2020, the applicant petitioned the, for a Peace Order to stop from stalking, harassing, and contacting him, coming to his place of work, and using Facebook to bully him, and his family, and assassinating his character. 8. On 24 July 2020, the applicant received a GOMOR, which stated, in pertinent part: a. He was being reprimanded for engaging in an inappropriate sexual relationship with a woman who was not his spouse from January of 2018 through December of 2019. As a warrant officer in the United States Army, this conduct was unacceptable and had an adverse impact on discipline, authority, and morale. b. As a warrant officer in the United States Army, he was charged with the responsibility of setting the example for subordinates to emulate. Clearly, his actions fell below the expected standards and demonstrated an extreme lack of judgement and maturity. There was no excuse for his irresponsible and improper behavior, and further incidents of this nature may result in more serious action being taken against him. “I trust that your future duty performance will reflect the degree of professionalism expected of every Soldier assigned to this command.” c. The imposing general officer indicated the reprimand was imposed as an administrative action and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). He was considering filing the reprimand in the applicant's Official Military Personnel File (OMPF). d. On 29 July 2020, the applicant acknowledged receipt of the GOMOR and submitted a rebuttal statement on 21 August 2020, indicating: (1) He took full responsibility for his actions addressed in the GOMOR and he appreciated the opportunity to respond. He acknowledged he caused unimaginable trauma and turmoil to his wife and embarrassed his teammates who supported his career. The past 8 months had been emotional and stressful. He wanted to prove his sincere support of the Army's values by clarifying and providing additional background information for his conduct and behavior. (2) He met six months after being separated from his wife in January 2018. The separation was due to two failed in-vitro attempts coupled with the emotional and financial cost of in-vitro. His lapse in judgment as it pertained to was tied to his wife returning to to file for separation. He was in a very vulnerable and emotional state while taking care of his sick father, who passed away in October 2018 and his ill mother, who passed away March 2019. After his mother's death, he and his wife mutually decided to reconcile. He had sought and received professional counseling to help him work through his emotional issues and he had worked diligently to reconcile and rebuild a loving relationship with his wife. His commitment to the unit and the Army had never wavered. He continued by detailing various background concerning his marriage and military life. e. On 28 August 2020, the applicant was notified the GOMOR was filed in his OMPF. On 3 September 2020, he acknowledged receipt of the filing determination. 9. On 16 February 2021, the applicant received a referred OER for the period 31 March 2020 through 17 August 2020. There is no evidence he appealed the referred report. a. The rater rated his performance as “Capable.” b. The senior rated his potential as “Qualified” and wrote “[Applicant] turned in an excellent performance this rating period. However, he violated Army values which has harmed the Command. Despite this lapse in judgement, [Applicant] remained focused and contributed immensely to mission accomplishment. I recommend that the Army retain him at his current rank and enable his continued service. 10. On 13 September 2021, the applicant wrote a Memorandum to the AGDRB, requesting that: a. He be permitted to retire in the rank of CW3. He believed the entirety of his record showed he served satisfactorily at that rank and he should be permitted to retire at that rank as a result. In support of this request, he respectfully submitted the following information for the board’s consideration. b. AR 15-80, paragraph 2-4 stating in pertinent part, “Generally, a determination will be based on the Soldier's overall service in the rank in question” According to that paragraph, factors to be considered included: (1) Medical reasons, which may have been a contributing or a decisive factor in a reduction in grade, misconduct, or substandard performance. (2) Compassionate circumstances. (3) Length of otherwise satisfactory service in the rank/grade in question, before and after the misconduct. Respectfully, he submitted that his overall performance in the rank of CW3 showed he served satisfactorily in the rank predicated in the three aforementioned areas. c. Timeline of the Incident. The incident that resulted in the GOMOR, dated 24 July 2020, and referred OER (an extension of the GOMOR), for the period 20200331 – 20200817) was the only adverse event in his entire Army career, including his service in the current grade. While separated from his spouse who had initiated divorce proceedings in he entered a new relationship with a woman who was not his spouse. This physical relationship was legally wrong as he was not yet divorced from his wife, and he took full responsibility for this mistake. However, the relationship ran from 17 March 2018 through 19 February 2019 (according to the investigation report, while he was a CW2. He was promoted to CW3 on 1 July 2019. The GOMOR stated the relationship continued until December 2019, but that is incorrect, and the fact is corroborated by the Army’s official investigation. The misconduct occurred prior to his promotion to CW3. He requests the board find this single incident of misconduct did not occur during his time as a CW3, therefore, it should not be the basis for any adverse determination by this board. d. Emotional and Psychological Factors During This Time. He met the woman] 6 months after being separated from his wife in January 2018. The separation was due to two failed in-vitro attempts coupled with the emotional and financial cost of in-vitro and his battle with medically diagnosed combat related PTSD. His lapse in judgment pertaining to the incident was at least partially caused by his wife returning to the place they got married, to file for separation. Additionally, he was in a very vulnerable and emotional state while taking care of his sick father, who passed away on 8 October 2018, and his ill mother who passed away on 4 March 2019. After his mother’s death, he and his wife reconciled. He had received professional counseling to help him work through his emotional issues and he had worked diligently to reconcile and rebuild a loving relationship with his wife. e. Military Handling of PTSD Cases. DOD had inaugurated new policies regarding how review boards should handle petitions dealing with cases involving PTSD. Secretary Hagel issued the initial guidance on 13 September 2014 and Undersecretary Kurta supplemented those instructions on 25 August 2017. Both memoranda instructed Discharge Review Boards to give sympathetic consideration to petitioners for clemency where PTSD was involved because PTSD can be a significant contributing factor to misconduct that is not under the Soldier’s control. While these memoranda are directed to the Discharge Review Boards, they do establish a DOD policy that should be applied by all agencies when dealing with adverse actions against PTSD victims. It’s important to note that Defense Secretary Chuck Hagel stated, “BCM/NRs will fully and carefully consider every petition based on PTSD brought by a veteran. This includes a comprehensive review of all materials and evidence provided by the petitioner. The Kurta memorandum states, “Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD.” Based on this guidance from DOD leadership, he requests this Board extend clemency as his combat related PTSD substantially contributed to his emotional state and error in judgment. f. Effect of Prior Discipline. Receiving the GOMOR has compelled changes in his life. He recommitted to his marriage and to Army service both professionally and personally. He leaned on his brothers and sisters and mentors who have profoundly impacted the man he is today. These positive changes resulted in his receipt of two General Officer Letters of Commendation, and two coins of recognition, one from a foreign leader, and one from the command chaplain for service and commitment to the local military community. These commendations demonstrate his unwavering dedication and hard work to produce after receiving the GOMOR and show a willingness to overcome the incident and contribute to the Army's Team. He also maintained his Top Secret/SCI (Sensitive Compartmented Information) [clearance] during this process. This highlights that, overall, his service as a CW3 was centered on an unwavering commitment to service. g. Summary of Service as a CW3: He served as the Senior CBRN Warrant Officer of the 20th CBRNE Command within the current operations cell from 1 July 2019 through the present. He has received, analyzed, synchronized, coordinated, and monitored operations of 3800 Soldiers and civilians across 16 States, and 19 installations operating routinely across the globe. Additionally, he has represented the Commanding General and the command as the liaison officer to the 17th Infantry Division Republic of Korea Army (ROKA) during a theatre level training exercise that resulted in recognition by the 17th ID (ROKA) Commanding General for his outstanding support during 2nd “QTR, FY 21” Combined Command Post Training Exercise (CCPT- 21-1). He has given 47 operations and intelligence briefs to the Commanding General and authored 50 executive summaries to capture command operational activities, always receiving positive feedback from the FORSCOM Commanding General on the detailed information presented. During “4th QTR, FY 21 CCPT-21-2,” he received approval from the Department of Energy on a diagram illustration that defines the roles and responsibilities for U.S and ROKA CBRNE forces based on the Nuclear Nonproliferation Treaty. He also, served as the Command Senior CBRN Warrant Officer of 46 junior and mid-grade warrant officers providing leadership and mentorship. h. Summary of Service Before the GOMOR and Referred OER: In reviewing his OER as a CW2 (20180327 THRU 20190215) that covered the rating period during which the incident in question occurred, he believes it is important to note that his rater stated, “Superb leader and resource manager. He is ranked 1 of 3 CBRN warrants that I have rated while serving as company commander.” Additionally, in that OER, his senior rater stated, “The applicant is 1 of 12 chief warrant officers I senior rate and in the top 5% of warrants with whom I have served in 20 years.” i. Service During the Investigation. In reviewing his OER as CW2/CW3 (20190214 THRU 20200330), which covered the period of the investigation, he believes it is important to note his senior rater stated, “The applicant turned in an outstanding performance and I ranked him in the top 25% of all officers I have senior rated. He has keen mission oriented and institutional knowledge and possesses the potential to serve at higher levels. Send to ‘WOILE’ and promote to CW4.” j. Summary of Service During the GOMOR and Referred OER. “In reviewing my referred OER as a CW3 (20200331 THRU 20200817), which covered the rating period when the GOMOR was issued, I believe it is important to note that my rater and senior rater rated me as “capable and qualified.” Furthermore, my senior rater stated, “I strongly recommend retaining him at his current rank and enable his continued service.” During this stressful time my command recognized that my service was excellent and recommended that I be allowed to continue to serve. k. Summary of Service After the GOMOR. In reviewing my next OER as CW3 (20200817 THRU 20210621), which covered the period of after the GOMOR was issued, I believe it is important to note that my rater stated, “The applicant performed exceptionally and ranked in the top 5% of officers I have served with in 19 years of service.” “I have never received an evaluation with an unsatisfactory service rating in my 23 years of service.” l. Subsequent Commendations. In September 2020, I received a General Officer Letter of Commendation from the US Army CBRN School Commandant. The letter states, “I extend my sincerest thanks for your contribution during the Contamination Mitigation Table Top Exercise. Your input was vital to the event and will go a long way helping us develop near and far term contamination mitigation capabilities supporting future Army Forces.” In February 2021, I received another General Officer Letter of Commendation from the Combined Arms Center DCG –Education. The letter states, “The applicant’s name, your initiative to further your education speaks well of your desire to learn and grow as Soldier and a leader. By completing your degree, you’ve unlocked a future of greater opportunity for yourself, and in doing so have also made the United States Army better.” m. Letters of Support. Enclosed are character letters from supervisors/raters who know of the high quality of service I have contributed to the Army during the time in question. The letters highlight the high quality of his service history and demonstrated that incident in no way had any negative effect on unit morale or mission accomplishment. He sincerely requests the board consider the statements of these career leaders and the recommendation they have predicated on his service as proof that his service as a CW3 was excellent. n. The incident was not a normal representation of his character or indicative of the type of person he is. He does not want to minimize this event; he simply requests that it be considered in the context of his Army career generally and his overall service as a CW3 specifically. The GOMOR spoke of continued service, “I trust that your future duty performance will reflect the degree of professionalism expected of every Soldier assigned to this command.” His performance, as mentioned and his degree of professionalism as demonstrated in these materials show that he has done as directed. o. Additionally, he reiterates his vulnerability and emotional state while personally battling PTSD. He believes the AGDRB would be fully justified in exercising clemency over his lapse in judgment. Although not an excuse, he requested the AGDRB consider the mitigating personal and emotional circumstances given his situation. Additionally, he believed the character letters from his chain of command demonstrated the incident in no way had any negative effect on unit morale or mission accomplishment. Finally, his chain of command submitted an MSM for his retirement award which he believed shows he successfully served as a CW3. Based on these factors, he believed the AGDRB should see that he served satisfactorily in the rank of CW3 and that the circumstances of his case would justify the exercise of some compassion in accordance with AR 15-80, paragraph 2-4. 11. On 15 November 2021, the AGDRB determined the highest rank/grade in which the applicant served satisfactorily for the purpose of computation of retired pay was CW2. 12. On 31 July 2022, the applicant was honorably retired under the authority of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), by reason of sufficient service for retirement. On 1 August 2021, he was placed on the Retired List in the rank of CW2. 13. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests to retire as a Chief Warrant Officer 3 (CW3), instead of (CW2). He contends that his PTSD condition and other life stressors contributed to the misconduct which resulted in the receipt of a GOMOR dated 24Jul2020 and grade reduction as determined by the15Nov2021 Army Grade Determination Board. He also requests removal of all associated negative information from his military record. b. The available military record (to include awards and commendations) and facts concerning the case were summarized in the ABCMR ROP. Of note, the applicant entered his final period of service on 31May2012 at which time he already had 13 prior years in service. He had 2 combat deployments. He was promoted to CW3 01Jul2019. He was honorably discharged after having served sufficient years for retirement 31Jul2022. His MOS was Chemical, Biological, Radiological, and Nuclear (CBRN) Officer. c. In his application, the petitioner stated that he met the woman with whom he had an extramarital affair in January 2018 and last communicated with her in December 2019; however, he last had sex with her in February 2019. He contended that this was “a single incident of misconduct (improper relationship)” that occurred while he was a CW2. He further contended that this occurred during a very vulnerable and challenging time of his life and after his wife went and drafted and signed a marital separation document on 28Aug2017. It should be noted that the applicant was born in and later returned there to be married. In his application, he stated the marital separation followed two failed in vitro fertilization (IVF) attempts which according to medical records, took place some time between 28Feb2013 and 13Oct2016. He also divulged the following life stressors: The death of his father (October 2018) and of mother (March 2019); and he served as a health care proxy for a brother while he was intubated due to COVID (May 2020 to June 2020). It was observed that the last three life stressors mentioned all occurred after the applicant began the extramarital affair. d. While in service, the applicant was diagnosed with combat related PTSD due to 12 months deployment in Iraq (2009-2010), and 9 months in Qatar in (2011-2012). The Initial PTSD DBQ signed 08Dec2021 noted the following stressors: The veteran related that in Iraq 2009-10 he was the platoon sergeant for 30 soldiers in charge of identifying and removing IEDs. In addition, he recalled an indirect fire hit which landed about 25 meters away. The applicant also reported 2 other traumatic events early in his military career: A collapsed lung due to multiple stabbing attack by a girlfriend in 2000; left hip and legs crush injury during a car accident in 2002 that required reconstructive surgery. e. The ARBA Medical Reviewer observes that the applicant’s service has already been characterized as ‘Honorable’. In addition, the applicant was voluntarily discharged after having achieved sufficient years for retirement. The applicant was retired at a reduced grade due to the extramarital affair misconduct. The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance memorandum were considered; however, PTSD is not mitigating for adultery. PTSD does not prevent distinguishing right from wrong. Kurta Questions * Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. * Did the condition exist, or did the experience occur during military service? N/A * Does the condition or experience actually excuse or mitigate the discharge? N/A. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The evidence of record shows the applicant received a GOMOR in July 2020 for engaging in an inappropriate sexual relationship with a woman who was not his spouse from January of 2018 through December of 2019. As a warrant officer in the United States Army, this conduct was unacceptable and had an adverse impact on discipline, authority, and morale. He was provided an opportunity to submit matters on his own behalf and he did so. The imposing CG considered the facts and circumstances of his case as well as his rebuttal and ordered the GOMOR filed in the performance folder of his official service record. b. The Board determined that while it is true that a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance, to train, and rehabilitate Soldiers, it is also true that the quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline. The applicant’s conduct as an officer was a serious departure from that expected of officers in similar positions. The applicant admitted to the lapse of judgment in his rebuttal statements and requested leniency. The multiple character statements he provided were also considered by the imposing officer. As the applicant admitted to the misconduct, the GOMOR does not appear to be untrue or unjust. c. Once the GOMOR was filed in the official record it became a permanent record and will not be removed from or moved to another part of the official record unless directed by certain agencies, to include this Board. The GOMOR is properly filed, and the applicant has not proven this GOMOR to be either untrue or unjust or that it has served its purpose. Thus, the Board found insufficient evidence to support its removal from her official records. d. When he submitted a request for retirement, having a GOMOR on file triggered action by the AGDRB to determine if his service was satisfactory as a CW3. The AGDRB reviewed his case and determined if his retirement is approved, he would be placed on the Retired List in the grade of CW2. The Board reviewed the medical advisor’s review of this case and agreed that the applicant was retired at a reduced grade due to the extramarital affair misconduct. The September 2014 Secretary of Defense Liberal Guidance Memorandum and the August 2017 Clarifying Guidance memorandum were considered; however, PTSD is not mitigating for adultery. PTSD does not prevent an individual from distinguishing right from wrong. Based on a preponderance of evidence, the Board determined that the Rank/Grade the applicant received upon retirement was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. 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. AR 15-80 (AGDRB and Grade Determination) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. a. Paragraph 2-2 states the AGDRB considers individual cases that are referred to it in accordance with this regulation. The AGDRB discussions and individual votes of members are privileged and confidential and will be disclosed only to those individuals in the decision-making process with a need to know. b. Paragraph 2-5c states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for the determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. c. Paragraph 4-1 states an officer is not automatically entitled to retire in the highest grade served on active duty. Instead, an officer is retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the Army or the Secretary's designee. For officers below the grade of brigadier general, the AGDRB will recommend to the DASA (Review Boards) for final determination the highest grade in which an officer has served satisfactorily for purposes of service/physical disability retirement. The AGDRB recommendation is purely advisory, and the Secretary of the Army or the Secretary of the Army's designee is not bound by that recommendation. d. Paragraph 4-1d states all retirements, except for disability separations, involving officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions) will be forwarded to the Assistant Secretary of the Army (ASA) Mobilization and Reserve Affairs (M&RA) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer's OMPF. Examples of such findings or conclusions include a memorandum of reprimand. Even if the information described is not required to be filed in the officer's OMPF, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to a determination of retired grade. 3. AR 15-185 (ABCMR), the regulation under which this Board operates, provides that the ABCMR will decide cases on the evidence of record. It is not an investigative agency. 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. 4. AR 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. Paragraph 6-13c (1) provides guidance for retirement at 20 years of service. It states, a Regular Army or U.S. Army Reserve commissioned officer with 20 years active federal service, of which 10 years is active commissioned service, may, on their request and the approval of Secretary of the Army, be retired. 5. 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 [the Hagel Memorandum], detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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 applicant's service. 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued [the Kurta Memorandum] clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002890 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1