IN THE CASE OF BOARD DATE: 1 March 2023 DOCKET NUMBER: AR20220006833 APPLICANT REQUESTS: * reconsideration of his previous request to – * upgrade his general under honorable conditions discharge to honorable * change the narrative reason for discharge to reflect "Medical Retirement" * change his separation program designator (SPD) code to "LFT (Physical Standards)" * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 5 December 2014, and allied documents from his Army Military Human Resource Record (AMHRR) * removal of the general officer memorandums of reprimand, 29 October 2014, and allied documents from his AMHRR * recall to active duty for a secondary hearing of the offenses under Article 15, UCMJ * recall to active duty for reconsideration for promotion to captain (CPT)/O-3 * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * 22-page Self-authored Letter, 16 April 2022 * Toronto Star News Article, 19 January 2011 * 2d Regiment, U.S. Corps of Cadets, U.S. Military Academy, Memorandum (Recommend Official Disenrollment of (Applicant) from the Special Leader Development Program), 16 May 2011 * Personal Data Sheet, 9 February 2016 * 6th Squadron, 17th Cavalry Regiment, Combat Aviation Brigade, 4th Infantry Division, Memorandum (Commander's Statement), 22 February 2016 * Memorandum for Record (Character Witness and Lifestyle Observations), 11 April 2022 * Memorandum for Record (Character Reference for Service-Disabled Veteran (Applicant)), 14 April 2022 * Headquarters, 17th Field Artillery Brigade, Memorandum (Letter of Support for (Applicant)), 16 April 2022 * Letter from 16 April 2022 * Letter from Sergeant Major (SGM) (Retired) undated * FedEx Express International Air Waybill, 12 February 2019 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170015501 on 28 January 2021. 2. In a 22-page letter to the Board, the applicant states his reasons for requesting corrective action by the ABCMR as: a. consideration of newly acquired material evidence demonstrating material errors and injustices; b. in a court of law, when the losing party has discovered material evidence since the trial which would probably produce a different result, a new trial is granted; c. unjust acts of reprisal by command leadership resulting in undue hardship and damages; d. disparate treatment compared to other troops who committed the same or similar offenses; e. inaccurate information and misrepresentation of fact within the ABCMR Record of Proceedings; f. acknowledgement that evidence of misconduct may double as evidence of a mental health condition; g. to ensure fair and consistent standards afford the veteran a reasonable opportunity for relief, even if sexual assault or sexual harassment was unreported or the mental health condition was not diagnosed until years later; h. boards should afford liberal consideration to evidence that supports more than one diagnosis (e.g., post-traumatic stress disorder (PTSD), bipolar disorder, sexual assault/military sexual trauma); i. liberal consideration should be given in petitions for changes in characterization of service to service treatment record entries which document one or more symptoms which meet the diagnostic criteria of PTSD or PTSD-related conditions; j. special consideration should be given to Department of Veterans Affairs (VA) determinations that document PTSD or PTSD-related conditions connected to military service; and k. in cases where service records or any document from the period of service substantiate the existence of one or more symptoms of what is now recognized as PTSD or PTSD­related conditions during the time of service, liberal consideration should be given to finding that PTSD existed at the time of service. 3. The Headquarters, 1st Battalion (Attack), 25th Aviation Regiment, memorandum (Appointment as Investigating Officer (IO) Pursuant to Army Regulation 15-6 (Procedures for IO and Boards of Officers)), 30 December 2013, appointed an IO to conduct an impartial and thorough investigation into the facts and circumstances surrounding the misconduct committed by the applicant and Sergeant (SGT) . Specifically, the IO was directed to investigate: a. when and how the applicant signed out on ordinary leave scheduled to start on 21 December 2013, b. when and where the applicant was supposed to leave for , c. how the chain of command found out the applicant did not make it to his leave destination, d. whether the applicant was directed to sign in from leave by his chain of command and whether the applicant returned from leave, e. how the applicant was contacted for his whereabouts, f. whether any personnel knew the applicant's whereabouts from 21 December 2013 to 24 December 2013, g. who found the applicant and where the applicant was found, h. whether the applicant fraternized with SGT and whether the applicant fraternized with any other personnel, i. whether the applicant issued a direct order not to drink alcohol or drive from his doctor,? j. whether the applicant violated the order from the doctor pertaining to alcohol, k. whether the applicant tested positive for drugs at any time, l. whether SGT submitted a false statement about the applicant's whereabouts, m. whether SGT violated a "no contact" order with the applicant issued by his commander on 24 December 2013, n. whether Sergeant First Class (SFC) had knowledge of the applicant's whereabouts, o. whether Specialist (SPC) had knowledge of the applicant's whereabouts, and p. any other pertinent areas of investigation. 4. The Headquarters, 1st Battalion (Attack), 25th Aviation Regiment, memorandum (Army Regulation 15-6 Investigation Findings and Recommendations), 15 January 2013 (should read 2014), reflects the IO's findings and recommendations as directed on 30 December 2013. a. He found: (1) As to when and how the applicant signed out on ordinary leave scheduled to start on 21 December 2013, the applicant did not sign out in person at any time. SPC told the applicant that she would take his leave form back to staff duty on the night of 20 December 2013. When she drank alcohol at the Christmas party, she decided against going back out to Butts Army Airfield. The next day there was text message contact between SPC and the applicant indicating that she told him that she would sign him out. SPC signed the applicant out at approximately 0700 on 23 December 2013 and backdated the entry to appear that the applicant had signed out at 0641 on 21 December 2013. (2) As to when and where was the applicant supposed to leave for he was supposed to leave for on 21 December 2013. The IO was not able to obtain a copy of the itinerary so he does not know the time and location. The applicant's re-booked flight was for 1600 on 24 December 2013 out of Airport. Presumably, the applicant's first flight was also supposed to be out of Airport. (3) As to how the chain of command found out the applicant did not make his leave destination, the applicant's family (including parents and an older brother) called the staff duty office over the weekend. Captain (CPT) and Major (MAJ) did not find out the applicant had not made it to his leave destination until 0900 on 23 December 2013. (4) As to whether the applicant was directed to sign in from leave by his chain of command and whether he returned from leave, when First Lieutenant (1LT) CPT and MAJ finally found the applicant on the evening of 24 December 2013, he was directed that his leave was revoked and they escorted him back to Fort Carson, CO. Later that night, CPT gave the applicant an event counseling, specifically stating that "your requested leave for the holiday period of 2013 is revoked immediately." (5) As to how the applicant was contacted for his whereabouts, the chain of command attempted multiple times to contact the applicant by many means, including phone calls, text messages, emails to personal and Government email addresses, Facebook, checking his apartment, and asking several people if they had seen him. MAJ Command Sergeant Major (CSM) 1LT SFC SFC SFC and SPC had a huddle on the afternoon of 23 December 2013 and tried to determine when the last time anybody had seen the applicant. The last time they could determine was in SGT car right before the Christmas party. In the end, the way the applicant was contacted was by going to SGT house and finding him under the porch in the backyard of his house. They searched and could not find him. They were going to go into the back yard when SGT roommate said something to the effect of "He's jumped the fence." MAJ pulled out his cell phone and used the flashlight application to look behind bushes in the backyard. He saw the porch and checked under the porch and found the applicant there. (6) As to whether any personnel knew the applicant's whereabouts from 21 December 2013 to 24 December 2013, SGT and his roommate knew the applicant's whereabouts. Nobody else knew the applicant's location during that time. (7) As to who found the applicant and where, CPT called SGT and gave him a "no contact" order with the applicant and called him in to work in order to question him on 24 December 2013. At the same time, 1LT was in contact with the local police department trying to arrange for a triangulation of the applicant's cell phone signal. They were able to determine a location within 1 mile of SGT house. When SGT arrived at the office, he was read his rights, which he waived, and told CPT and MAJ that the applicant was at his house. CPT called 1LT and told him to go to SGT house since he was close to that area. When 1LT arrived, SGT roommate opened the door and closed the door. After a little bit, 1LT heard the back door of the house open and close. Then SGT roommate came out onto the porch and stayed there with 1LT for about 15 minutes until CPT MAJ and SGT arrived. At first, SGT went inside and acted as if he would not let them in, but then he let the leadership into his house. They searched and could not find the applicant. They were going to go into the backyard when SGT roommate said something to the effect of "He's jumped the fence." MAJ pulled out his cell phone and used the flashlight application to look behind bushes in the backyard. He saw the porch and checked under the porch and found the applicant there. (8) As to whether the applicant fraternized with SGT or with any other personnel within the company, he found the applicant and SGT engaged in fraternization. The elements to the offense of Article 134 (Fraternization), UMCJ, are: (1) that the accused was a commissioned or warrant officer; (2) that the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner; (3) that the accused then knew the person(s) to be (an) enlisted member(s); (4) that such fraternization violated the custom of the accused's service that officers shall not fraternize with enlisted members on terms of military equality; and (5) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces. (9) The facts show the applicant went to SGT house and was intoxicated from the night of 20 December 2013 until the night of 24 December 2013. While the IO was unable to discover the extent of the applicant's intoxication for the entire 4-day period, SGT reported that the applicant was intoxicated and that he would not leave. Additionally, MAJ found the applicant intoxicated under the porch on the 24 December 2013. The toxicology report shows the applicant's blood alcohol content was .08 percent some hours later. It is undisputable that the applicant is a commissioned officer and it is also undisputable that the applicant knew that SGT is an enlisted member as both are members of the same unit. The facts show the applicant fraternized on terms of military equality with SGT when the applicant excessively consumed alcohol in SGT home and remained in a drunken state over the course of no less than 4-5 days. This contact or association between the applicant and SGT shows conduct which has compromised the chain of command; resulted in the appearance of partiality; and has clearly undermined the good order, discipline, and authority of the unit. Further, Army Regulation 600-20 (Army Command Policy) provides controlling guidance. The facts show the applicant, a commissioned officer, through his actions, compromised the integrity of supervisory authority or the chain of command; caused an actual or perceived partiality or unfairness; and created an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. This conduct clearly inures to the prejudice of good order and discipline within the company and battalion. (10) Prior instances of potential fraternization. In October 2013, the applicant suffered a seizure while he was "house sitting" for SFC . SGT and SPC were also present. It has been reported that the applicant was extremely intoxicated when he suffered his seizure. Due to insufficient facts, it is not the IO's finding that the applicant fraternized with enlisted members on that night. However, it does raise the question, "Why was a company grade officer extremely intoxicated at a senior noncommissioned officer's (NCO's) house in the presence of an E-5 and an E-4?" (11) Further, it is not the IO's finding that the event hosted at SFC home for Thanksgiving was fraternization. It is, however, his opinion that going out and Black Friday shopping together can be perceived as fraternization because it gives a perception of favoritism from that officer to the NCO in front of several other enlisted Soldiers. (12) As to whether the applicant issued a direct order not to drink alcohol or drive from his doctor, the applicant said the doctor never issued him an order not to drink alcohol but recommended that he not drink caffeinated drinks. CPT never heard for certain that there was a "no alcohol" recommendation from the applicant's doctor. He heard the applicant told MAJ that he was not supposed to drink alcohol. When the IO questioned CPT on 10 January 2014, he said he had never issued a "no alcohol consumption" order to the applicant. The applicant said the doctor told him not to drive between approximately 24 October2013 and 8 December 2013. CPT remembers a 60- day no-driving order from the applicant's doctor and he believes that order was issued around 16 October 2013. In summary, the IO cannot conclude that there was an order from a physician prohibiting the applicant from drinking alcohol. In any event, the applicant would have been cleared to drive himself again by 16 December 2013, pending any further medical issues or guidance from his doctor. (13) As to whether the applicant violated the order from the doctor pertaining to alcohol, it is unclear from a review of the evidence whether there was an order not to drink alcohol by his doctor. (14) As to whether the applicant tested positive for drugs at any time, the applicant tested positive for tetrahydrocannabinol (THC) (the principal psychoactive constituent of cannabis) at the hospital when a toxicology test was administered. The command also administered a "probable cause" urinalysis, which was ordered by CPT on 26 December 2013. On 15 January 2014, CPT and his Unit Prevention Leader NCO received notification that the applicant's test was negative for THC. The applicant told the IO in his interview that he never took drugs, that he was only intoxicated from alcohol. However, there is a positive drug use result from the urinalysis administered on 24 December 2013. In viewing the totality of the circumstances, the IO cannot make a determination as to whether the applicant used drugs. (15) As to whether SGT submitted a false statement regarding the applicant's whereabouts, SGT did submit a false statement regarding the applicant's whereabouts. On 23 December 2013, SGT submitted a sworn statement under oath that he did not know the applicant's whereabouts while the applicant was at his house. Additionally, the phone records indicate the applicant texted SGT less than 1 hour before SGT rendered that sworn statement. (16) As to whether SGT violated a verbal "no contact" order with the applicant issued by his commander, CPT on 4 December 2014, the IO found that SGT was verbally issued a "no contact" order by telephone at approximately 1930 on 24 December 2013 and that he immediately went to his house and spoke with the applicant face to face. (17) As to whether SFC had knowledge of the applicant's whereabouts, SFC swore under oath that he did not know the applicant's whereabouts. Additionally, from all of the questioning, he received no indication from anybody that someone besides SGT knew the applicant's location. Additionally, he believes SFC was genuinely concerned for the well-being of the applicant and called the applicant's roommate (who was on leave) in order to try and figure out if the applicant was okay. (18) As to whether SPC had knowledge of the applicant's whereabouts, he did not believe anybody knew the applicant's location except SGT based on SPC sworn statement and others. (19) The IO found the applicant disobeyed an order not to get rides with enlisted Soldiers. (20) The IO found SGT was found to have THC in his body on 26 December 2013. (21) The IO found the applicant and SPC violated standard operating procedures by not having him sign out in person. The applicant says he did not tell SPC to do that for him, but the evidence suggests that he knew it was against the standard operating procedures and did not insist on signing out properly. (22) The IO found that perceptions exist in the company that certain behaviors are tolerated that could be viewed by some as fraternization. Events in the past that the IO discovered included a section officer in charge and NCO in charge rooming together and a 1LT and a staff sergeant rooming together.? b. The IO recommended: (1) the applicant should be issued a general officer memorandum of reprimand (GOMOR); (2) SGT should have UCMJ proceedings initiated against him for lying under oath, disobeying a lawful order, and drug use; and (3) the command team should take a close look at fraternization in the company to ensure that actual or perceived fraternization is not tolerated. If there are any other incidents with sufficient evidence, they need to be held to the same standard so a perception is not given that the applicant and SGT are being dealt with harder than anybody else. 5. The Headquarters, Combat Aviation Brigade, 4th Infantry Division, memorandum from the brigade judge advocate (Legal Review of Army Regulation 15-6 Investigation into the Alleged Misconduct by (Applicant)), 16 January 2014, states he reviewed the findings and recommendations of the subject investigation submitted by the IO. He found the investigation to be legally sufficient. After reviewing the investigation and its attached exhibits, he specifically found: a. the proceedings were conducted in compliance with legal requirements, b. there were no material substantive errors, c. sufficient evidence supports the findings of the investigation, and d. the recommendations are consistent with the findings. 6. The DA Form 1574 (Report of Proceedings by IO/Board of Officers) for the session held on 30 December 2013 states the appointing authority approved the IO's findings and recommendations. 7. The Headquarters, 1st Battalion (Attack), 25th Aviation Regiment, memorandum (Appointment as IO Pursuant to Army Regulation 15-6), 28 January 2014, shows an IO was appointed by LTC to investigate further the indications of fraternization within Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment, as discovered in the original investigation of the misconduct surrounding the applicant and SGT . Specifically, the IO was directed to investigate: a. whether the applicant fraternized with enlisted Soldiers; b. whether there were any inappropriate relationships within the Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment, between officers, NCOs, or junior enlisted Soldiers; and c. whether there were relationships formed within the company or battalion that could be detrimental to good order and discipline within the formation. 8. It is unknown if the Army Regulation 15-6 investigation was completed. There are no records of the investigation provided by the applicant or contained in his service records. 9. The Headquarters, Combat Aviation Brigade, 4th Infantry Division, memorandum (Appointment as IO Pursuant to Army Regulation 15-6), 10 February 2014, states an IO was appointed by Colonel (COL) to investigate further the indications of fraternization within Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment, as discovered in the original investigation of the misconduct surrounding the applicant and SGT . Specifically, the IO was directed to investigate: a. the facts and circumstances (who, what, when, where, and why) surrounding the alleged fraternization between officer(s) and enlisted members of Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment; b. whether officers within Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment, or any other organization, fraternized in terms of military equality with enlisted members in a certain manner that such fraternization violated the custom of military service that officers shall not fraternize with enlisted members in terms of military equality and, if so, whether this conduct inured to the prejudice and good order and discipline within 1st Battalion (Attack), 25th Aviation Regiment, and/or the Armed Forces in accordance with Article 134, UCMJ; c. whether senior NCOs within Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment, or any other organization, engaged in prohibited relationships with junior enlisted members and, if so, describe the facts and circumstances (who, what, when, where, and why) surrounding the alleged prohibited relationships, to include findings with application to Army Regulation 600-20; and d. the facts and circumstances (who, what, when, where, and why) surrounding the incident on or about 16 October 2013 regarding the applicant experiencing a seizure. 10. The 404th Aviation Support Battalion, 4th Combat Aviation Brigade, memorandum from the IO (Army Regulation 15-6 Investigation Findings and Recommendations), 20 February 2014, reflects his findings and recommendations of the investigation directed on 10 February 2014. a. The IO found that based solely on the evidence and witness statements collected, credible and reliable evidence surfaced indicating multiple fraternization activities within the company. Most were unidentified to the chain of command until alleged by the applicant in the previous Army Regulation 15-6 investigation. (1) The IO found three separation incidents of fraternization occurred within Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment, between officers and enlisted members beginning as early as July 2013. (2) The applicant and SGT maintained a personal social relationship rooted to their meeting in late 2012. The Soldiers state their mutual friendship developed out of their desire to do tough physical training and they seemed to value one another's opinion and leadership styles. However, their initial relationship centered around physical training and evolved into an inappropriate relationship when their frequent off-duty social activities included drinking either alone or with a small group of friends, often in the presence of other members of the unit. The applicant and SGT were together at SFC house on 16 October 2013 when the applicant suffered his seizure. The applicant acknowledges that he received rides from SGT in mid-December 2013 when he ceased receiving rides from SFC . The applicant claims he was unable to secure transportation from officers within the unit. The applicant was at SGT house from 20- 24 December 2013. He also maintains he was drunk most of the time because he was on leave. This relationship clearly shows the applicant fraternized in terms of military equality with SGT . This relationship also inures to the prejudice of good order and discipline within the unit. Finally, when viewed against Army Regulation 600-20, this relationship is prohibited as this relationship has created an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish the mission. (3) The applicant engaged in fraternization with SFC when he accepted the offer to and agreed to house sit for SFC . The inappropriate nature of the relationship contributed to SFC offering rides to the applicant who accepted rides to and from work and to medical appointments after the applicant's October medical incident. It also allowed the two of them to leave Thanksgiving dinner and go shopping at Walmart. The relationship was in violation of Army Regulation 600-20 by causing actual or perceived partiality or unfairness. (4) The IO found one incident occurred within Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment, of officer and enlisted fraternization. The relationship between the applicant and SPC started in early Summer 2013 and ended with the applicant's 16 October 2013 medical emergency. SPC stated that he, SFC applicant, and SGT would sometimes gather off duty to drink at SFC house or at a local bar. The IO assessed SPC statement as credible. Both the applicant and SFC had the duty to cease the relationships, but did not. This is a violation of Army Regulation 600-20 in that all military members did not share responsibility for maintaining professional relationships. It is the duty of the most senior member to limit or terminate the relationship. (5) The IO described the circumstances surrounding the applicant's medical emergency on 16 October 2013. SFC authorized the applicant to house sit for him while he was on temporary duty to a course from early September until mid-October. The applicant invited SPC and SGT to SFC residence. The applicant recalled that he had been drinking that night. SPC arrived around 2130 and announced his presence by saying "hello." He observed SGT and the applicant sleeping on separate couches. SGT woke and acknowledged SPC arrival, but the applicant did not respond. SPC departed the house and went to his car to retrieve his cell phone charger. Upon re-entering the house, he heard SGT yelling that the applicant was not breathing. SPC requested that SGT call 911 and locate SFC aid bag. SPC stabilized the applicant until the arrival of the emergency medical team. The emergency medical team transported the applicant to Memorial Hospital. SPC and SGT followed the ambulance to the hospital and contacted the chain of command. The chain of command reported the incident using a Serious Incident Report. The company chain of command visited the applicant in the hospital. Three days later the applicant was released from the hospital and placed under the care of his primary care physician. He was instructed to conduct all necessary follow-up appointments with his doctors. CPT stated that he personally did not engage the applicant's doctors to determine his post-event medical care. He instructed the applicant to maintain follow-up appointments with his doctors. b. The IO recommended: (1) The 1st Battalion (Attack), 25th Aviation Regiment, should complete a 100-percent fraternization standdown training session within 30 days of receipt of the findings. The instructions must clearly articulate the boundaries established by Article 134, UCMJ, and Army Regulation 600-20. Proven case studies can be used to further identify prohibited relationships. It is evident that leaders and Soldiers within the unit are confused as to what action(s) constitute fraternization. The statements all define fraternization differently and it is not consistent. (2) The applicant should receive a GOMOR to dispose of the misconduct revealed by this investigation. (3) SFC should receive a GOMOR and bar to reenlistment. (4) SGT is pending adverse action for other misconduct, which is outside the purview of this investigation. The IO recommended that the misconduct discovered in this investigation be a further basis for his pending adverse action. (5) SPC should receive a battalion-level memorandum of reprimand and a bar to reenlistment. (6) CPT and First Sergeant should receive battalion-level letters of reprimand for failing properly adjudicate a known fraternizing activity and have the reprimands reflected in their next evaluations. 11. The Headquarters, Combat Aviation Brigade, 4th Infantry Division memorandum from the brigade judge advocate (Legal Review of Army Regulation 15-6 Investigation into the Allegations of Fraternization and Prohibited Relationships in Headquarters and Headquarters Company, 1st Battalion (Attack), 25th Aviation Regiment), 21 February 2014, states he reviewed the findings and recommendations of the subject investigation submitted by the IO. He found the investigation to be legally sufficient. After reviewing the investigation and its attached exhibits, he specifically found: a. the proceedings were conducted in compliance with legal requirements, b. there were no material substantive errors, c. sufficient evidence supports the findings of the investigation, and d. the recommendations are consistent with the findings. 12. The Headquarters, Combat Aviation Brigade, 4th Infantry Division, memorandum from the appointing authority (Continuation of Section VIII (Action by Appointing Authority) DA Form 1574, Army Regulation 15-6 Investigation Dated 20 February 2014), approved the findings of the IO. He approved the IO's recommendation that the applicant should receive punishment under the UCMJ. The investigation was forwarded to the other Soldiers' command as they were no longer assigned to the Combat Aviation Brigade. 13. The Headquarters, 4th Infantry Division and Fort Carson, memorandum from the commanding general (Administrative Reprimand), 29 October 2014, reprimanded the applicant for drunken operation of a vehicle in violation of Article 111 (Drunken or Reckless Operation of Vehicle, Aircraft, or Vessel), UCMJ, resulting in damage to three vehicles in violation of Article 109 (Property Other Than Military Property of the United States – Waste, Spoilage, or Destruction), UMCJ. He stated the applicant was involved in a single-vehicle traffic accident on 22 February 2012 when he lost control of his vehicle. His vehicle crossed all lanes of traffic as it traveled toward the eastside of the roadway where it hit the raised curb and travelled across a sidewalk where it struck three parked vehicles belonging to Mercedes Benz of. An officer from the Springs Police Department responded to investigate the accident. Upon contact, the officer detected a moderate odor of an unknown alcoholic beverage emitting from the applicant's breath and he also observed the applicant's bloodshot, watery eyes, and slurred speech. The applicant admitted that he had one beer prior to operating his vehicle. The police administered a blood alcohol test which established the applicant's blood alcohol level at .156 grams of alcohol per 100 milliliters of blood. 14. The Headquarters, 4th Infantry Division and Fort Carson, memorandum from the commanding general (Administrative Reprimand), 29 October 2014, reprimanded the applicant for drunk operation of a vehicle in violation of Article 111, UCMJ. He stated the applicant's misconduct endangered the safety of himself and other members of the community. On 6 October 2013, the applicant was observed operating a motor vehicle without a driver's side brake/turn light by an officer from the Police on northbound Highway 21. The officer then observed the applicant change lanes without signaling from the far right lane over to the left turn lane. A traffic stop was initiated. The officer detected signs of impairment and intoxication. The applicant failed to satisfactorily complete a series of voluntary roadside maneuvers. During a check of the applicant's driver's license, the officer discovered the applicant was driving on a revoked driver's license for a previous offense of driving under the influence (DUI) of alcohol. The police administered a blood alcohol test which established the applicant's blood alcohol level at .142 grams of alcohol per 100 milliliters of blood. 15. On 10 November 2014 in response to both GOMORs, the applicant submitted a rebuttal. The applicant deferred to his counsel who stated: a. At some point during the applicant's military career, he began to have serious problems. He received alcohol-related driving offenses in February 2012 and October 2013. In May 2014, the applicant was charged with a misdemeanor criminal mischief charge as a result of damaging an umbrella attached to a hotdog stand. According to the police report, the applicant shouted at the vendor, flexed his muscles "like the Hulk," kicked off his shoes, and took off in a dead sprint down an alleyway. He was later discovered to have leaped off a second floor parking structure. The height of the structure involved a 25-30 foot drop. The applicant was found unconscious by officers. He was shoeless and his left ankle was "horrifically distorted and obviously broken or dislocated." His right foot was bleeding and he had numerous scrapes over his entire body. He appeared to be heavily intoxicated and disoriented. These incidents are obviously troublesome and the applicant is hugely remorseful for his conduct. However, counsel argues the applicant's conduct must be understood through the prism of the bipolar disorder for which he was only recently diagnosed. b. Subsequent to these incidents, the applicant was voluntarily committed to the Parkview Medical Center Inpatient Program for a substantial period. During that term at the Parkview Medical Center, the applicant was very cooperative and participated in all groups and meetings. While there, he was diagnosed with alcohol dependence, a history of polysubstance abuse, and mood disorder. The mood disorder is more commonly referred to as bipolar disorder. c. According to the most recent Diagnostic and Statistical Manual of Mental Disorders, bipolar disorder is often associated with issues such as school truancy and failure, occupational failure, and episodic and anti-social behavior. It is also very commonly associated with alcohol and other substance abuse disorders in many individuals. d. As a defense attorney, counsel is often faced with an individual who has exhibited some type of criminal behavior and who concurrently suffers from some type of mental illness. The law often does not recognize mental illness as a defense to criminal behavior per se, but has long treated these defendants in a different manner than other criminal defendants. The applicant is in precisely the same position. e. Mental health experts would uniformly testify that the applicant's two DUIs and the behavior surrounding the criminal mischief charge in which he acted irrationally, ultimately jumping off a building and seriously harming himself, are behaviors entirely consistent with this bipolarity. His self-medication by abusing alcohol to ease the depressive state and his manic behavior surrounding the criminal mischief charge are entirely consistent with what has been known about this mental health disorder for several decades. He was undiagnosed concerning this bipolar disorder until very recently and he has cooperated fully in terms of his treatment, his medication, and his counseling subsequent to that diagnosis. The applicant has requested consideration by a medical evaluation board, but it is his understanding that the medical board process has been suspended by the chain of command due to nonjudicial punishment under Article 15, UCMJ, imposed against him on 29 October 2014. f. The Parkview Medical Center Discharge Summary, 2 July 2014, shows the applicant was admitted on 4 June 2014 for alcoholism. It further reflects: (1) The applicant reported he was out with friends drinking but was separated from the group at some point. He recalls very little of the night in question, though he does recall being on a tall building in the downtown area of quite intoxicated, jumping off a building, and sustaining some bilateral lower extremity injuries. Following this, he was seen at the hospital and underwent treatment. He was seen by the Army Substance Abuse Program (ASAP) because of his issues with alcohol. He was referred to the Parkview Medical Center Chemical Dependency Clinic for help.? (2) The applicant reported he started drinking when he was in the 8th grade and experimenting with marijuana. His use of alcohol and marijuana was quite regular and escalated quickly. He also experimented with various other drugs in high school and college. He reported that alcohol became a problem during his time in college between December 2013 and May 2014. He was drinking alcohol on a regular basis. He drank to intoxication each time. He denies that he ever drank at work. He has had some short periods of sobriety. (3) During the applicant's entire stay at Parkview Medical Center, he remained very pleasant and cooperative. He participated well in group and Alcoholics Anonymous meetings. There were no psychotic manic symptoms and he did not engage in any self- destructive behavior. (4) His discharge diagnoses consisted of alcohol dependency, a history of polysubstance abuse, and mood disorder. g. A letter from Ms. a psychiatric mental health nurse practitioner, at Evans Army Community Hospital, 5 November 2014, states the applicant was under her care from 21 July 2014 to the date of the letter. He was under her care for treatment of bipolar disorder, alcohol dependence, and polysubstance abuse, which is now remitted. She further stated: (1) It became apparent to her that the applicant had his mood disorder for some time and it went untreated, mostly because he did not see it as a problem and did not have it diagnosed. Since he has been on medications to stabilize his mood, he has done much better in the arena of staying sober. It is not uncommon in her practice to come across people like the applicant who suffer from mood disorders and also from substance abuse. (2) The applicant has been absolutely cooperative with his treatment for his bipolar disorder and has been quick to recognize the links between being in a hypo- manic or depressed state, and then using a substance to try and feel less anxious or sad. He has also made great strides in understanding the care it will take to continue to treat his bipolar disorder in the years to come. (3) The applicant also has made great strides in treating his substance abuse and has shown a great deal of courage in moving forward and being honest about his drinking and substance abuse. He has not, to her knowledge, relapsed since coming for help, and willingly went to treatment and continues to care for his sobriety. He has shown a great deal of insight into his behavior and has accepted that he cannot drink or use substances at any time, and that his mood disorder will only become worse if he should. (4) She encouraged the court to consider the applicant as a success thus far in treatment, and he has so much potential as he moves forward in his life. This journey with his bipolar disorder and his alcoholism and substance abuse has cost him a lot and he appears ready and genuine in his desire to overcome these challenges. He has done the work it requires to do so. 16. On 5 December 2014, the applicant accepted nonjudicial punishment under Article 15, UCMJ. a. The imposing commander found him guilty of three specifications of violation of Article 107 (False Official Statement) for making false official statements and one specification for violation of Article 134 for fraternizing with an enlisted person. b. The punishment consisted of forfeiture of $2,195.00 pay per month for 2 months and restriction for 60 days, suspended for 6 months. c. The applicant elected not to appeal the punishment. d. The imposing commander directed filing the DA Form 2627 in the performance folder of the applicant's Official Military Personnel File (OMPF). 17. On 18 December 2014, consistent with the chain of command's recommendations, the imposing authority directed filing the applicant's two GOMORs be filed permanently in his AMHRR. 18. The 4th Combat Aviation Brigade, 4th Infantry Division, memorandum from the brigade behavioral health officer for the battalion commander (High Risk Soldier), 19 March 2015, states the information provided to him in his role as the battalion commander should be protected and its distribution limited to those who have a "need to know." a. The applicant has been identified by both the Department of Behavioral Health and ASAP as meeting current high-risk criteria for continued conduct likely to result in self-harm or other risk-taking behaviors, to include the inappropriate use of alcohol. In the past 15 months, the applicant had a full range of both Army and civilian behavioral health and substance abuse resources available to him. Unfortunately, as of this writing, the applicant has not continued to follow the medical recommendations designed to help him improve his well-being and to avoid repeated behaviors that have caused him both military and civilian legal problems. The applicant's providers asked the brigade behavioral health officer to contact the applicant, which he did. The applicant has failed to follow the brigade behavioral health officer's request to contact his providers on a regular and consistent basis. b. The applicant had individual behavioral health counseling, group counseling, and medication support. He has also had individual, group, and medication support through the ASAP. He has had a period of residential treatment and outpatient group treatment at two different local hospitals. c. Currently, the applicant has not complied with recommended ASAP appointments indicated as necessary by his current prescriber. Current recommendations for him include the use of medication, which he has elected to not use. The risk of his behavior and decision-making resulting in further occupational, social, and legal problems is currently considered "high'' from a behavioral health perspective. His case was last reviewed by the Department of Behavioral Health/ASAP Multidisciplinary Team on 12 March 2015. d. The brigade behavioral health officer recommended that the applicant's company commander complete and maintain weekly Soldier and Leader Risk Reduction Tool assessments on the applicant pending a change in his desire to more fully engage with the agencies attempting to help him regulate his behaviors and choices. e. Soldiers cannot be forced, ordered, or otherwise directed to participate in behavioral health treatment or to take recommended medications. However, the Soldier must be reminded of the consequences of failing to accept or comply with care recommendations, when doing so is reasonably expected to cause a repeat of behavior that previously resulted in self-harming decisions or other behavior that will have negative consequences for the individual Soldier, the unit, and the Army. f. Currently, the applicant should be considered not reliable to have access to sensitive information. His security clearance should be suspended pending review by the S-2 and the installation security manager. His behavioral stability is in question; therefore, he should not be permitted to handle weapons and ammunition. His commander should assess his access to personally owned weapons and secure them as part of a written risk mitigation plan. If desired, the company commander may request a fitness for duty evaluation on the applicant. Based on the totality of the above information, the applicant is not world-wide qualified, deployable, nor should he participate in duties requiring reliability of decision making or stability of behaviors. He should not have leadership responsibilities and should not be permitted to travel to courses or training on temporary duty until his risk is reduced. The brigade behavioral health officer further recommended that the applicant not be approved for extended periods of leave until his risk is reduced. 19. The Headquarters, Combat Aviation Brigade, 4th Infantry Division, memorandum from the brigade commander (Recommendation for Separation – (Applicant)), 27 April 2015, recommended the applicant's separation from the military with a general discharge. He based his decision on the applicant's previous conduct, which was punished under a general-officer Article 15, UCMJ, and two GOMORs. The applicant has chosen not to comply with recommended treatment for his identified behavioral health and substance abuse issues. a. In his opinion and in consultation with the Fort Carson helping agencies, the risk of the applicant's behavior and decision-making results in further occupational, social, and legal problems is high and likely to repeat. b. Based on the applicant's actions and poor decisions during his time at Fort Carson, he sees no potential for future service with the Army. 20. The Headquarters, 4th Infantry Division and Fort Carson, memorandum from the commanding general (Initiation of Elimination), 2 June 2015, ordered the applicant to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2b, 4-2b(5), 4-2b(8), 4-2c(1), and 4-2c(5) due to his misconduct. He stated he is recommending the applicant's separation with a general discharge under honorable conditions. His actions are based upon the following reasons for elimination: a. on 18 December 2014, a GOMOR issued 29 October 2014 was filed in the applicant's AMHRR for drunken operation of a vehicle and subsequent damage to three vehicles; b. on 18 December 2014, a second GOMOR issued 29 October 2014 was filed in the applicant's AMHRR for a second offense of drunken operation of a vehicle; c. on 5 December 2014, the applicant received general officer-level nonjudicial punishment under Article 15, UCMJ, for three violations of Article 107, UCMJ, and one violation of Article 134, UCMJ. The general officer-level DA Form 2627 was filed in his AMHRR; and d. conduct unbecoming an officer as indicated by the above-referenced GOMORs and nonjudicial punishment. 21. The DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement), 14 October 2015, shows the applicant is not working in his military occupational specialty due to having no position authorization and is assigned to the rear detachment without an authorization to fill. The applicant's medical and ASAP appointments limit his ability to be at work but do not hinder the unit's mission. His previous conduct causes his commander to doubt his potential for further service and as such cannot recommend retention. The applicant's extensive medical appointments and ASAP counseling causes him to not be present for work often. His ability to complete assigned tasks is limited by not being present.? 22. The Secretary of the Army memorandum (Promotion Review Board (PRB) AP1508-05, Fiscal Year 2014 CPT, Army Competitive Category Promotion Selection Board), 20 November 2015, directed the applicant's removal from the Fiscal Year 2014 CPT, Army Competitive Category, Promotion Selection List. 23. The U.S. Army Human Resources Command memorandum (PRB Results (PRB AP1508-05), 3 December 2015, informed the applicant that his records were referred to a Department of the Army PRB for reconsideration of his promotion status. Unfortunately, the Secretary of the Army decided to remove him from the promotion list. A copy of the Secretary of the Army's decision will be filed in the restricted folder of his AMHRR. 24. On 5 January 2016, a medical evaluation board (MEB) met to evaluate the applicant's fitness. The MEB determined the applicant's bipolar II disorder was medically unacceptable, was incurred while entitled to basic pay, and did not exist prior to service. The MEB recommended his referral to a physical evaluation board (PEB). The approving authority approved the findings and recommendations of the MEB. The applicant agreed with the MEB's findings and recommendation. 25. The DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), 26 January 2016, for the 9 May 2014 incident indicated an absence of mental health or impairment before or after the incident. The IO noted the applicant initially reported he sustained the injuries when he fell down the Pike National Forest Barr Trail. The applicant later admitted he sustained the injuries due to intoxication and jumping off a high building. The IO stated the applicant's voluntary intoxication and abuse of intoxicating liquor were the precipitating and proximate cause of his injuries and noted: "injury or death incurred while knowingly resisting a lawful arrest, or attempting to escape from a guard or other lawful custody, is incurred not in line of duty. It is due to misconduct." The applicant was found mentally sound and his brigade commander determined his injuries were not incurred in the line of duty. 26. The MEB Narrative Summary Behavioral Health Addendum, 29 January 2016, noted the symptoms associated with the applicant's bipolar II disorder may demonstrate some improvement and stabilization with treatment; however, it is unlikely this will be to the degree allowing for a return to military service with full performance of duties within the next 5 years. The applicant fails retention standards due to a persistence of symptoms necessitating limitations of duty or duty in a protected environment and resulting in interference with effective military performance. 27. The MEB Narrative Summary, 4 February 2016, noted the applicant requires significant limitations in duty, including no access to weapons or ammunition to reduce potential harm to himself or others given his history of suicidal ideation and attempts. He also requires unrestricted access to definitive behavioral health services and a protective environment to prevent his condition from worsening. With these restrictions, the applicant is unable to deploy to an austere environment. 28. The Headquarters, U.S. Army Medical Department Activity, memorandum for the President, U.S. Army Physical Evaluation Board (Impartial Medical Review Request/ Declination: (Applicant)), 11 February 2016, shows the applicant reviewed the contents of the MEB packet and read the MEB proceedings, narrative summary, and his physical profile, and the PEB Liaison Officer provided him with information on the impartial medical review. The applicant elected not to have an impartial medical review of his MEB. 29. The 6th Squadron, 17th Cavalry Regiment, Combat Aviation Brigade, 4th Infantry Division, memorandum (Commander's Statement), 22 February 2016, requests the applicant's evaluation for assignment to the Warrior Transition Unit. The squadron commander states: a. The applicant's bipolar disorder was first observed in May 2014 and he was first assigned a limiting behavioral health profile in August 2014. He is a chemical officer, which requires consistently completing tasks to standard that require sustained attention, complex problem solving, multi-tasking, or memory intensive tasks. Over the past 2 years, the applicant was assigned 30-90 day limited duty physical profiles on five occasions and he currently has a permanent physical profile for bipolar disorder and mild obstructive sleep apnea. b. The applicant has been admitted to behavioral health facilities, to include Parkview Medical Center in June 2014, Fort Carson Mountain Post Behavioral Health Clinic in July 2014, Cedar Springs Mental Health Hospital in September 2014, as well as the Evan Army Community Hospital Inpatient Program in February 2016. He returned to work and continued therapy ranging from once to several times per week. c. The applicant's mental health disorder continues to remain unstable. His therapy plan consumes 4 hours or more per week and is expected to be continuous. d. The applicant's permanent physical profile also requires unrestricted access to definitive behavioral health services and a protective environment to prevent his condition from worsening. e. The applicant requires significant limitations in duty, including no access to weapons or ammunition to reduce potential harm to himself or others given his history of suicidal ideation and attempts. f. He recommended assignment of the applicant to the Warrior Transition Unit for complex medical management.? g. Symptoms associated with the applicant's bipolar disorder may demonstrate some improvement and stabilization with treatment; however, it is unlikely this will be to the degree allowing for a return to military service with full performance of military occupational specialty duties within the next 5 years. 30. On 1 March 2016, an informal PEB was conducted. The PEB found the applicant to be physically unfit, recommended a disability rating of 50 percent, and his permanent disability retirement. His disability is listed as bipolar II disorder. a. On 10 March 2016, the PEB Liaison Officer informed the applicant of the PEB's findings and recommendations and explained the results of the findings and recommendations. b. On 10 March 2016, the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case. c. On 16 March 2016, the PEB findings and recommendations were approved. 31. The Headquarters, 4th Infantry Division and Fort Carson, memorandum from the commanding general (Recommendation of Disposition for Elimination, (Applicant)), 17 March 2016, states he reviewed the elimination action and MEB pertaining to the applicant. The MEB findings indicate the applicant has bipolar II disorder. He did not find the applicant's disability is a cause or substantial contributing cause of the misconduct or that other circumstances warrant his disability process. Therefore, consistent with the applicant's chain of command, he recommended the applicant's characterization of the applicant's service as general under honorable conditions. 32. On 11 May 2016, the Department of the Army Ad Hoc Review Board reviewed the Informal Physical Evaluation Board Proceedings convened on 1 March 2016 and the Probational Officer Elimination Case against the applicant. The Deputy Assistant Secretary of the Army (Review Boards) determined the applicant would be involuntarily eliminated from the U.S. Army with a general under honorable conditions characterization of service. His elimination is based on both misconduct and moral or professional dereliction under the provisions of Army Regulation 600-8-24, paragraph 4-2b, and derogatory information under the provisions of Army Regulation 600-8-24, paragraph 4-2c. 33. On 29 May 2016, the applicant was discharged from active duty under honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct. 34. On 28 January 2021 in Docket Number AR20170015501, the ABCMR denied the applicant's request to upgrade his general discharge under honorable conditions to honorable, change the narrative reason for his separation to reflect "Medical Retirement," and to change his SPD code to reflect "LFT." The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board further considered his medical records and the conclusions of the advising official. The Board concurred with the medical advisory opinion, finding insufficient evidence of in-service mitigating factors to overcome the applicant's egregious misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of the evidence, the Board determined the character of service and the narrative reason for separation the applicant received were not in error or unjust. 35. Mr. provided a character witness and lifestyle observations letter, 11 April 2022, on behalf of the applicant wherein he stated he did not know the applicant until after he separated from the Army, but he can attest to the man as he knows him today. a. The applicant is a patriotic American and disabled veteran of high-quality character who has gone on to excel in his career within the Federal civil service, maintaining a happy and successful marriage and raising a child with no blood relation of his own. He is active in his religious community, practices a healthy and balanced lifestyle, and places friends and family before himself. These qualities are reflective of the Army's core values. b. Through discussions with the applicant over the years, he attests that the applicant is able to maintain a clear understanding that his actions while in the Army were unacceptable and not reflective of the uniform he wore. He believes the genesis of the applicant's behavior was never truly addressed. If it had been, perhaps his command would have been aware of his severe psychological and emotional trauma for which he now subsequently receives care from the Department of Veterans Affairs. c. The applicant is simply seeking to modify his record of service because of his pride. His pride in serving, pride in himself, and pride for his family. He is not seeking any gain. 36. The applicant's spouse provided a character-reference letter, 14 April 2022, wherein she stated she met the applicant on 28 June 2017 and they wed on 6 November 2020. He is a loving husband, an amazing life partner, and a father to her daughter. She did not know him while he served in the Army. a. He was forthright about his past. He has proven to her that he is someone who she can trust, rely on, and lean on during life's ups and downs. During the base closure of U.S. Army Garrison Yongsan in 2019, she faced uncertainty in her career and life. He took it upon himself to change his career path so she could continue her career with the Navy Federal Credit Union. He was able to secure a job in Virginia. He took a job across the country just so he could provide for her and her daughter. He put their needs before his own to ensure they were taken care of. b. He came into her daughter's life when her daughter was only 3 years old. He has become a father figure to her. He has learned to take care of her daughter. She can clearly see the love he has for their family. c. She can attest to his character. He is a man who is trustworthy, respectful, and humble. He has taken accountability for what he has done in the past, changed his ways for the better, and now walks in the path of virtue. 37. Major the applicant's brother, provided a letter of support, 16 April 2022, wherein he stated that despite the applicant's discharge from the Army in 2016, he continues to serve honorably as a Department of the Army civilian and willingly sacrifices his own personal time to help service members and veterans. a. Following his exit from the Army, the applicant served as a transition service representative, assisting Soldiers moving from active duty into civilian life. During this time, he received a number of positive accolades from his supervisors, resulting in promotions to positions of increased responsibility within his organization. He continues to demonstrate superior performance in Government service in his current position with the Department of Homeland Security. b. He is proud of the applicant's recovery and of his continued service to their country. 38. Mr. provided a statement on behalf of the applicant, 16 April 2022, wherein he stated he has known the applicant for over 3 years. He has spoken with the applicant plenty of times, both professionally and personally. He never served in the Army with the applicant so he truly cannot speak about his character when he was in the Army. a. He can confidently attest to the applicant's passion, professionalism, dedication, and overall willingness to support service members. The applicant has gone far and above many times to ensure that soon-to-be veterans are not only prepared for leaving the service, but are more likely to succeed when out. b. The applicant has helped many service members and their families, both professionally and as a person. On many occasions, he observed service members who are privately dealing with behavioral health concerns open up to the applicant and speak freely with him. The applicant has the ability to put himself in other people's shoes and let people know he is there for them. He has had many service members and veterans thank him for simply introducing them to the applicant. 39. The applicant's father, SGM (Retired) provided an undated letter on behalf of the applicant wherein he stated: a. He reviewed some of the Board's comments in the initial decision and was surprised that there were comments regarding the applicant's conduct prior to his acceptance to the U.S. Military Academy at West Point. His selection to attend West Point is a testament in itself of his character, who was 17 years old when he was dropped off at West Point. b. The first indication to him that his son was having some issues was at Christmas 2013. He and his wife had recently retired from the Army and had both taken Government civilian jobs in the. His eldest son was stationed at, and the applicant was stationed at Fort Carson, CO. He and his wife flew to Fort Hood, TX, where the applicant was supposed to link up with them. He and his wife went to the airport to greet him when he arrived, but he was not on the flight. They tried to contact him several times, but were unsuccessful. Out of concern, they contacted his command. Once the applicant was found and the circumstances were brought to light, he immediately caught a flight to to see him. c. He took leave without pay to spend time with him to try and understand the situation. It was immediately apparent that he had developed an alcohol dependency issue. He spent the next few weeks with the applicant who seemed to be doing well. The applicant was enrolled in the ASAP and returned to duty. The applicant was scheduled to deploy to the National Training Center (NTC) with his unit. He felt the applicant's condition had improved enough for him to return to Korea. He planned to visit the applicant upon his return from the NTC. d. When he arrived at the applicant's apartment after his return from the NTC, he found the applicant sitting on the floor, not standing. The applicant informed him that he had broken both of his feet during a climbing incident. He was crawling around his apartment, unable to stand on his feet. The applicant was being required to stand in physical training formation. As a father, he was devastated. As a retired SGM, he was disgusted in the applicant's command. Not only was the command so grossly blind to all the indicators that a problem existed, but they were now treating him in an inhuman manner. This prompted him to make an appointment with the brigade commander. e. The brigade commander was the first individual in the applicant's organization he had spoken with who exhibited any genuine leadership or concern for the Soldiers under his command. As he spoke to the brigade commander about the applicant's circumstances, he was still unaware of the depth of the issues the applicant was having. He asked the brigade commander if he knew the applicant had broken his feet in a climbing incident. The brigade commander then informed him of all of the facts. The brigade commander also informed him of the applicant's two DUI charges. He left the meeting bewildered and knew the applicant's issues were more deeply rooted then just his alcohol dependency. It was apparent that the applicant needed to seek assistance from behavioral health professionals and that this was more than just bad behavior. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board determined the applicant did not provide evidence that clearly exonerates him or shows that there was a clear injustice. The Board found the Article 15 and the GOMOR received shows there was credible information regarding the applicant's involvement in the alleged offenses. Removal of a GOMOR or Article 15 are generally not warranted unless it is factually incorrect. However, the Board determined that the applicant did not demonstrate by a preponderance of evidence that any procedural error occurred that was prejudicial to the applicant, or that the applicant demonstrated by a preponderance of evidence that the contents of the GOMOR are substantially incorrect to support removal. The Board found insufficient evidence based on the applicant’s misconduct that would merit a recall active duty for reconsideration for promotion to captain (CPT)/O-3 2. The Board found the applicant’s post service accomplishments, his extensive community service since his discharge. and his character letters to be noteworthy and compelling. However, the Board found the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Evidence of record shows, at the time of separation, documentation supports the separation program designator (SPD) code and his narrative reason for separation properly identified on the DD Form 214. Therefore, the Board agreed there is insufficient evidence to amend the previous Board’s decision. 3. The purpose of maintaining the Army Military Human Resource Record (AMHRR). is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. There does not appear to be any evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's AMHRR. 4. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20170015501 on 28 January 2021. 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. Army Regulation 15-185 (ABCMR), 1 May 2006, prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Paragraph 2-11 (ABCMR Hearings) states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-37 (Unfavorable Information), 2 October 2020, sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. Paragraph 3-2 (Policies) states unfavorable information will not be filed in the AMHRR unless the recipient has been given: (1) the opportunity to review the documentation that serves as the basis for the proposed filing; and (2) a reasonable amount of time to make a written statement in response. This statement may include evidence that rebuts, explains, or mitigates the unfavorable information. The recipient may also elect to decline, in writing, the opportunity to provide a written response. b. The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in the AMHRR. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management), effective 7 May 2014, prescribed policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows the original DA Form 2627 will be filed locally in unit NJP or unit personnel files for Soldiers who are in the rank of specialist/E-4 or corporal/E-4 and below (prior to punishment). Such locally filed originals will be destroyed at the end of 2 years. For all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder will be made by the imposing commander. Records of NJP presently filed in either the performance or restricted folder of the OMPF will remain so filed, subject to other applicable regulations. 4. Army Regulation 600-8-24 (Officer Transfers and Discharges), 12 April 2006, prescribed the officer transfers from active duty to the Reserve Components and discharge functions for all officers on active duty for 30 days or more. It provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. a. Paragraph 1-22a (Honorable Characterization of Service) stated an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under Department of Defense Directive (DODD) 5200.2-R (Personnel Security Program) and Army Regulation 380-67 (The Department of the Army Personnel Security Program) for reasons that do not involve acts of misconduct, for an officer. b. Paragraph 1-22b (General under Honorable Conditions Characterization of Service) stated an officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory buy not sufficiently meritorious to warrant an honorable discharge. A separation under honorable conditions will normally be appropriate when an officer: (1) is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate; and (2) is discharged for the final revocation of a security clearance under DODD 5200.2-R and Army Regulation 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge under other than honorable conditions is appropriate. c. Paragraph 4-2b stated elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interests of national security. d. Paragraph 4-2c stated elimination action may be or will be initiated for derogatory information. The following reasons (or ones similar) require an officer's record to be reviewed for consideration of terminating the appointment. Standing alone, one of these conditions may not support elimination; however, this derogatory information combined with other known deficiencies form a pattern that, when reviewed in conjunction with the officer's overall record, requires elimination: (1) punishment under Article 15, UCMJ; (2) conviction by court-martial; (3) the final denial or revocation of an officer's Secret security clearance by appropriate authorities acting pursuant to DODD 5200.2-R and Army Regulation 380-67; (4) a relief-for-cause officer evaluation report; (5) adverse information filed in the OMPF in accordance with Army Regulation 600-37; or (6) failure of a course at a service school. 5. Army Regulation 635-8 (Separation Processing and Documents), 10 February 2014, prescribed the transition processing function of the military personnel system. The general instructions stated the DD Form 214 is an important record of service that must be prepared accurately and completely. a. The specific instructions for item 26 (Separation Code) stated to obtain the correct entry from Army Regulation 635-5-1 (SPD Codes), which provides the corresponding SPD code for the regulatory authority and reason for separation. SPD codes are "For Official Use Only" and are not released outside the Department of Defense. DODD 5400.07 (DOD Freedom of Information Act Program) will be used to deny the release of SPD code lists to the public. Only the individual being separated is entitled access to his or her SPD code. It is not intended that these codes stigmatize an individual in any manner. They are intended for DOD internal use in collecting data to analyze statistical reporting trends that may influence changes in separation policy. b. The specific instructions for item 28 (Narrative Reason for Separation) stated this entry is based on regulatory or other authority and can be checked against the cross reference table in Army Regulation 635-5-1. 6. Army Regulation 635-5-1 (SPD Codes), 10 December 2007, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214. Table 2-2 (SPD Codes Applicable to Officer Personnel) showed the narrative reason for SPD code "JNC" is "Unacceptable Conduct" under the provisions of Army Regulation 600-8-24, paragraph 4-2b. 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. 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 based on 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. 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) AR20220006833 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1