IN THE CASE OF: 

		BOARD DATE: 9 March 2023

		DOCKET NUMBER: AR20220008662


APPLICANT REQUESTS: through counsel via voluntary remand by the U.S. Court of 
Federal Claims:

*	consideration of his allegations of legal error in the processing of the 
administrative investigation, administrative reprimand, and Board of Inquiry
*	determination as to whether his disability evaluation was processed to 
completion prior to the Army's determination to involuntarily eliminate him
*	determination as to whether he was properly processed for both elimination and 
completion of the disability evaluation under governing Army regulations
*	reconsideration of the Army's previous decisions regarding his case (interpreted 
to mean discharged for unacceptable conduct instead of retired by reason of 
disability)

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	U.S. Court of Federal Claims Complaint, 13 July 2022
*	U.S. Court of Federal Claims Motion of Voluntary Remand and Stay, 
12 September 2022
*	U.S. Court of Federal Claims Order, 13 September 2022

FACTS:

1.  The applicant defers to counsel.

2.  Counsel states:

	a.  In early 2017 during combat operations in Mosul, Iraq, in support of the Iraqi 
military, the applicant was knocked unconscious by an Islamic State of Iraq and Syria 
(ISIS) rocket attack that dropped bomblets around his unit and created a minefield of 
bomblets. He awoke after approximately 5 minutes, led a group of Soldiers to safety, 
and evacuated the wounded, saving many lives.

	b.  In early 2019, at Fort Hood, TX, amid divorcing him, the applicant's wife, also an 
Army officer (a major (MAJ) senior in grade to him) accused him of adultery and 
misusing his Government-issued cellular phone to conduct this alleged affair. An 
investigating officer (IO) cleared him of all allegations, but his division commander, 
Major General (MG) exercised his power to overrule the IO and made findings of vague 
misconduct without corroborating evidence. The division commander reprimanded him 
in writing and directed filing the reprimand in his permanent official military records, 
which triggered follow-on administrative actions, including a Board of Inquiry, which 
found, without any evidence, that he engaged in an inappropriate relationship with a 
female lieutenant and that constituted "conduct unbecoming an officer." Meanwhile, his 
severe injuries from both combat-related parachuting accidents and the ISIS rocket 
attack resulted in his being found medically to perform his military duties with a disability 
rating of 70 percent and a recommended permanent disability retirement.

	c.  The Department of the Army sent the applicant orders stating he was to be 
separated for "unacceptable conduct" based on vague allegations, legally inapplicable 
charges, charges approved after hearings but without notice of their nature before the 
hearings, and factually unsupported findings that were conclusory and improperly filed 
in his military records. The administrative actions that led to his separation failed to 
provide due process, violated law and regulations and, notably, did not consider his 
serious combat-related disabilities for the propriety of separation and for the dual 
processing (for misconduct and disability evaluation), as required by Army regulations. 
The decisions and actions of the Army were arbitrary, capricious, contrary to law, and 
unsupported by substantial evidence.

	d.  The Army separated the applicant from the military without compensation or 
benefits on 26 May 2021. There was no evidence presented at any point that he 
engaged in an inappropriate relationship or that he committed any misconduct. The 
evidence showed an undisputed fact – that he was friends with the female lieutenant. 
Not only is that not misconduct and insufficient basis to separate him, but it is also a 
Constitutional right to be friends with someone, and the military may not infringe upon 
that right absent a valid military purpose for doing so. The only evidence the Army 
presented when it administered adverse actions and wrongfully separated him was that 
he had a female friend.

	e.  This action seeks to rectify the errors in the applicant's case and to compensate 
him for the wrongful and erroneous processing of his case at the hands of the Army. It is 
an action for wrongful discharge or, in the alternative, military disability retired pay due 
to the applicant as a result of his service in the U.S. Army.

	f.  Jurisdiction.

		(1)  The court has jurisdiction over statutes mandating payment of active duty 
pay and allowances for military members and retired pay for a service member who has 
disabilities that are unfitting and rated at least 30-percent disabling under the applicable 
Department of Veterans Affairs (VA) Schedule for Rating Disabilities. This complaint 
alleges money damage in excess of $10,000.

		(2)  The regulatory bases for this request include Army Regulation 600-8-24 
(Officer Transfers and Discharges) and Army Regulation 635-40 (Physical Evaluation 
for Retention, Retirement, or Separation). This complaint alleges money damages in 
excess of $10,000.

	g.  Factual Allegations.

		(1)  After the applicant's deployment, he was assigned, along with his wife, to 
Fort Hood, TX. Despite engaging in couples therapy from June 2018, they had serious 
marital discord. On or about 7 January 2019, at 2 a.m., after an argument, his wife, 
MAJ  asked him to leave their home. Having no place else to go at that early hour, he 
went to the apartment of a mutual friend of his and his wife's, a female first lieutenant 
(1LT) who was dating his brother. He stayed until approximately 6 a.m.

		(2)  On 15 January 2019, MAJ  verbally told her chain of command that she 
suspected the applicant was engaged in an adulterous relationship with 1LT  the 
woman whose apartment he visited on the morning he was kicked out of his home. On 
5 February 2019, she filed for divorce from the applicant in. In her petition for divorce, 
she stated, "Dates of Marriage and Separation – The parties were married on or about 
31 December 2012 and ceased to live together as spouses on or about 7 January 
2019."

		(3)  On 27 February 2019, MAJ wrote to the 1st Calvary Division Commanding 
General, again alleging the applicant was engaged in an adulterous affair with 1LT  and 
that he was misusing his Government-issued phone to communicate with her, both in 
violation of the Uniform Code of Military Justice (UCMJ). She requested that the 
command investigate these allegations.

		(4)  On 5 March 2019, the applicant's battalion commander, 
Lieutenant Colonel  appointed an IO under the provisions of Army Regulation 15-6 
(Procedures for Administrative Investigations and Boards of Officers) to investigate. On 
21 March 2019, his battalion commander issued him a written "no contact order," 
prohibiting any contact or communication with 1LT  and warning him that "Violations of 
this order may be punishable under Article 90, UCMJ, and may result in conditions on 
liberty or restraint."

		(5)  On 10 April 2019, a judge approved temporary orders having the effect of a 
separation agreement between the applicant and MAJ . In the agreement was a 
provision specifically referencing "paramours [a lover, especially the illicit partner of a 
married person]" and stating that neither party will have paramours "in the presence of 
the children at any time."

		(6)  On 15 April 2019, the IO issued findings and recommendations stating:

		(a)  The evidence does not support a finding that the applicant and 1LT  engaged 
in an inappropriate relationship.

		(b)  The evidence does not support a finding that the applicant and 1LT  engaged 
in an adulterous relationship or extramarital sexual relations in violation of Article 134, 
UCMJ.

		(c)  The applicant provided family support in accordance with Army Regulation  
608-99 (Family Support, Child Custody, and Parentage) during the period in question 
(1 February 2019 through March 2019). The applicant's direct deposit on 1 February 
2019 covered the month of February 2019 and his money transfer of $196.00 to 
MAJ  bank account on 28 February 2019 covered the month of March 2019.

		(d)  The evidence does not support a finding that the applicant improperly used 
his Government cellular phone to communicate with 1LT regarding personal matters.

		(e)  The evidence does not support a finding that the applicant and 1LT  violated 
the no-contact order issued on 21 March 2019.

		(f)  He recommended that "No adverse action be taken against the applicant."

		(7)  On 14 May 2019, MG  Commanding General, 1st Calvary Division, 
purportedly acting as the approval authority, ordered that the findings of the IO be 
modified to show "[Applicant] and 1LT  violated the no contact order after 21 March 
2019 in violation of Art. [Article] 92, Failure to Obey Order or Regulation," and as to the 
recommendations, he stated "Disapprove 4c. and 4e.," with no explanation as to the 
meaning, as there were no recommendations of the IO in that paragraph, only findings. 
There were no comments on, or actions taken, regarding the recommendations in 
block VII of the DA Form 1574-1, the form where MG  made his determinations.

		(8)  The same day, without giving the applicant an opportunity to respond to the 
changes to the findings of the investigation, MG  issued him a general officer 
memorandum of reprimand (GOMOR), stating he was "reprimanded for engaging in an 
inappropriate relationship with a female lieutenant while you were married. This 
improper relationship created an actual and clearly predictable adverse impact on 
discipline, authority, morale, and the ability of the command to accomplish the mission 
in violation of Army Regulation (AR) 600-20, Army Command Policy. Further, you 
violated a no contact order by having contact with the same lieutenant after 21 March 
2019. Your actions are violations of [Article] 92, Uniform Code of Military Justice 
(UCMJ), Failure to Obey Order or Regulation, and Article 133, UCMJ, Conduct 
Unbecoming an Officer and a Gentleman."

		(9)  On 2 June 2019, the applicant submitted a rebuttal to the GOMOR, denying 
all the allegations against him. On 26 June 2019, MG  without responding to the 
rebuttal, directed permanently filing the GOMOR in the applicant's Army Military Human 
Resource Record (AMHRR).

		(10)  On 7 August 2019, MG  notified the applicant that he was required to show 
cause for retention on active duty. There was no mention of either non-support or 
violation of the no-conduct order alleged in the GOMOR. The Army Regulation 15-6 
investigation did not find an inappropriate relationship and the issuance of the GOMOR 
itself was not misconduct by the applicant, but rather was an administrative action 
against him. There is no allegation or finding as to how the relationship was improper. 
This makes the GOMOR and its filing in his permanent AMHRR contrary to law and 
regulations, including Army Regulation 600-37 (Unfavorable Information). Per Army 
Regulation 600-37, paragraph 3-2c, "Unfavorable information filed in the AMHRR must 
meet statutory guidance, standards of accuracy, relevance, timeliness, and 
completeness."

		(11)  On 6 September 2019, Lieutenant Colonel  the applicant's new battalion 
commander, issued a second no-contact order between him and 1LT . This order 
contained an exception:

The only exception to paragraph (a) is that you may contact 1LT only by text 
message, email, or phone call in regards only to preparing and submission of 
matters to a Board of Inquiry regarding your Involuntary Separation case. No 
face-to-face contact.

		(12)  On 13 September 2019, MG  appointed a Board of Inquiry to conduct the 
show-cause hearing for the applicant, who was notified of the board on 12 November 
2019. The Board of Inquiry did not complete its deliberations until 8 January 2021.

		(13)  On 21 November 2019, the Board of Inquiry convened at Fort Hood, TX. 
The IO testified at the hearing that he found no evidence that the applicant had a sexual 
relationship with 1LT . He found no evidence of the applicant abusing Government 
devices for personal use, no evidence of paying child support, and no evidence of all 
other allegations against him. He noted the applicant's wife had the perception that 
there was an inappropriate relationship; however, no other witnesses stated they saw 
an inappropriate relationship. He also stated there was no evidence the applicant broke 
his no-contact order.

		(14)  After taking testimony and hearing the applicant's argument, the Board of 
Inquiry recommended the applicant's separation from the U.S. Army with a general 
under honorable conditions characterization of service.

		(15)  During the applicant's service, he incurred several disabilities, including a 
traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), hip disabilities, neck 
disabilities, back disabilities, sleep apnea, bilateral knee disabilities, and tinnitus, which 
interfered with his ability to perform his duties. An Army medical evaluation board (MEB) 
convened on 18 November 2020 and found that he failed retention standards due to his 
hip disabilities.

		(16)  On 19 January 2021, an informal physical evaluation board (PEB) found 
him unfit due to three hip disabilities rated at 10-percent disabling. He disagreed with 
these findings, submitted a request for consideration of additional conditions, and 
requested a formal PEB hearing. The Army scheduled a formal PEB for 13 April 2021.

		(17)  On 1 April 2021, the informal PEB reconsidered its findings and added the 
applicant's TBI as an unfitting condition, rated at 70 percent disabling, and found this 
condition to be incurred as a result of combat. The PEB recommended his permanent 
disability retirement. Combining (not adding) his TBI rating to his three unfitting hip 
disabilities, rated at 10 percent, his total rating for his unfitting conditions was 
determined to be 73 percent, which rounded down to 70 percent in accordance with the 
VA Schedule for Rating Disabilities. On the same date, he accepted the findings of the 
PEB.

		(18)  On 26 May 2021, the applicant was separated from the U.S. Army for 
"unacceptable conduct" with an honorable characterization of service. He did not 
receive a final and approved disposition from the PEB and the U.S. Army Physical 
Disability Agency prior to his separation.

		(19)  On 12 December 2021, the applicant and his wife divorced.

		(20)  The Board of Inquiry findings were not based on substantive evidence. 
There was no evidence adduced that the applicant had an improper relationship with 
1LT that he violated (the unlawful) no contact order, or that he engaged in conduct 
unbecoming an officer. The Board of Inquiry did not consider his severe physical and 
mental disabilities in deciding whether his separation was appropriate.

		(21)  The required medical examination under Army Regulation 600-8-24, 
paragraph 4-3, was not conducted and his condition was not considered by the Board of 
Inquiry in making a required determination as to whether his TBI, found 70-percent 
disabling, made his separation inappropriate. The command did not make the required 
notification to the U.S. Army Human Resources Command (HRC) as required in the 
same paragraph of the regulation when an officer has a medical condition discovered 
after the conclusion of an elimination board.

		(22)  The applicant was not dually processed through the officer elimination 
process and the Integrated Disability Evaluation System (IDES) as required by Army 
Regulations 600-8-24, and Army Regulation 635-40. The 70-percent disability rating for 
his TBI was not processed to completion before his separation.

		(23)  The applicant was accused by his wife of committing adultery, violating a 
no-contact order, and misusing a Government phone and email for personal matters. 
His command pursued various allegations of misconduct through an Army Regulation  
15-6 investigation, a GOMOR, and a Board of Inquiry. Each of these actions were 
fraught with legal errors, including vague and changing accusations, denial of due 
process, improper orders, unsupported and conclusory findings, and violations of law 
and regulations in the conduct of the administrative actions.

		(24)  The Army was required to dually process his case as a disability case and 
an administrative separation case with the final decision being determined by the 
Secretary of the Army (SECARMY) as stated in Army Regulation 600-8-24, 
paragraph 1-25, and Army Regulation 635-40, paragraph 4-3g(2). The failure of the 
Army to properly dually process this case renders the separation decision unlawful.

		(25)  The decisions and actions of the Army were arbitrary, capricious, contrary 
to law, and unsupported by substantive evidence. As a result of the improper actions 
taken by the Army, the applicant was wrongfully separated, and these errors denied him 
monies in excess of $10,000.

		(26)  Title 10, U.S. Code, section 1201, provides for the retirement of military 
members found disabled in the line of duty with at least a 30-percent disability rating for 
unfitting conditions under the VA Schedule for Rating Disabilities. The Army PEB 
ultimately found the applicant was unfit with a recommendation for permanent disability 
retirement, with a combined rating of 70 percent for injuries incurred as a direct result of 
enemy action in combat and for extra hazardous duties.

		(27)  Had the Army not wrongfully separated the applicant, he would have been 
permanently medically retired with a 70-percent disability rating from the Army, as found 
by the Army PEB.

		(28)  The decisions and actions of the Army were arbitrary, capricious, contrary 
to law, and unsupported by substantive evidence. As a result of the improper actions 
taken by the Army, the applicant was wrongfully separated instead of being medically 
retired. These errors have denied him monies in excess of $10,000.

3.  Following prior enlisted service in the Regular Army, the applicant graduated from 
Officer Candidate School and was appointed as a commissioned officer in the Regular 
Army effective 29 March 2012. He was promoted to the rank/grade of captain/O-3 
effective 1 March 2016.

4.  The applicant became the subject of an Army Regulation 15-6 investigation. An IO 
was appointed on 5 March 2019 to investigate the facts and circumstances surrounding 
the allegations that he engaged in an adulterous relationship with 1LT . The IO was 
directed to address the following questions at a minimum:

	a.  whether the applicant engaged in an inappropriate relationship with 1LT . If yes, 
describe what violations of the UCMJ regulations, or policy apply;

	b.  whether the applicant utilized his Government cellular phone or Government 
email to communicate with 1LT regarding personal matters. If so, was the use an 
improper use of Government resources;

	c.  whether the applicant failed to provide family support in accordance with Army 
Regulation 608-99; and

	d.  if during the course of your investigation you note other systemic issues or make 
relevant observations uncovering other issues which should be brought to the attention 
of the chain of command, you will address them in your findings and recommendations.

5.  In a 1 May 2019 memorandum, the IO completed the Army Regulation 15-6 
investigation, determined the following, and noted (see attachment with auxiliary 
documents):

	a.  Bottom Line up Front: The applicant did not engage in an inappropriate 
relationship with 1LT of sexual nature or adultery, did not fail to provide family support in 
accordance with Army Regulation 608-99, did not use his Government cellular phone to 
communicate with 1LT  regarding personal matters inappropriately, did not violate his 
no-contact order, but did engage in an inappropriate relationship with 1LT  by creating 
an actual or clearly predictable adverse impact on discipline, authority, morale, or the 
ability of the command to accomplish the mission.

	b.  Findings: Based on a preponderance of the evidence, the IO found that:

		(1)  The evidence does not support a finding that the applicant and 1LT  engaged 
in an inappropriate relationship of sexual nature in violation of Army Regulation 600-20 
(Army Command Policy), paragraph 4-14.

		(2)  The evidence does not support a finding that the applicant and 1LT  engaged 
in an adulterous relationship or extramarital sexual relations in violation of Article 134, 
UCMJ.

		(3)  The evidence supports a finding that the applicant and 1LT  engaged in an 
inappropriate relationship by creating an actual or clearly predictable adverse impact on 
discipline, authority, morale, or the ability of the command to accomplish the mission, in 
violation of Army Regulation 600-20, paragraph 4-14. This effect would not have 
occurred but for the actions of MAJ  (the applicant's wife). Her decision to bring multiple 
memorandums directly to the applicant's brigade and division commanders initiated this 
lengthy, time-intensive investigation and diverted the commander's attention from the 
mission. The applicant's wife was also the originating source of the rumors spreading 
through the 1st Armored Brigade Combat Team about the applicant and 1LT . But for 
her actions, the applicant and 1LT  relationship would not have had an adverse impact 
on discipline, authority, morale, or the ability of the command to accomplish the mission.

		(4)  The applicant provided family support in accordance with Army 
Regulation 608-99 during the period in question (1 February 2019 through 1 March 
2019). His direct deposit on 1 February 2019 covered the month of February 2019 and 
his money transfer of $196.00 to MAJ  bank account on 1 March 2019 covered the 
month of March 2019.

		(5)  The evidence does not support a finding that the applicant improperly used 
his Government cellular phone to communicate with 1LT  regarding personal matters.

		(6)  The evidence does not support a finding that the applicant and 1LT  violated 
the no-contact order issued on 21 March 2019.

	c.  Recommendation: The IO recommended the commander consider the following:

		(1)  retraining the applicant on the proper use and policies regarding Government 
cellular phones to avoid the perception of misuse;

		(2)  counseling the applicant on the fraternization policy and appropriate behavior 
of a commissioned officer of the U.S. Army;

		(3)  taking no adverse action against the applicant;?
		(4)  counseling 1LT  on the fraternization policy and appropriate behavior of a 
commissioned officer of the U.S. Army;

		(5)  taking no adverse action against 1LT 

		(6)  taking no adverse action against 2LT 

		(7)  taking no adverse action against 2LT 

		(8)  issuing a no-contact order between MAJ and 1LT due to the incident 
mentioned in paragraph 2f and possible future negative interactions;

		(9)  addressing all issues involving and surrounding the divorce between 
MAJ  and the applicant away from the applicant's and MAJ  places of work; and

		(10)  addressing the allegations by both married parties at their next court 
hearing.

6.  The Headquarters, 1st Cavalry Division memorandum (Legal Review of 
Administrative Investigation of Alleged Inappropriate Relationship between (Applicant) 
and 1LT  3 May 2019, found the investigation was legally sufficient. The administrative 
law attorney further provided the following recommendation to the Commander, 
1st Cavalry Division:

I recommend approval of all findings and taking further action as you deem 
appropriate. You may take action different than that recommended with regard to 
any individual named in the investigation. Pursuant to AR [Army Regulation] 15-6, 
para[graph] 2-8b, you may approve, disapprove, modify, or add to the findings and 
recommendations, consistent with the evidence included in the report of the 
proceedings.

7.  The DA Form 1574-1 (Report of Proceedings by Investigating Officer), 14 May 2019, 
shows in:

	a.  Section IV (Findings), the IO found and noted:

		(1)  The evidence does not support a finding that the applicant and 1LT  engaged 
in an inappropriate relationship.

		(2)  The evidence does not support a finding that the applicant and 1LT  engaged 
in an adulterous relationship or extramarital sexual relations in violation of Article 134, 
UCMJ.?
		(3)  The applicant provided family support in accordance with Army 
Regulation 608-99 during the period in question (1 February 2019 through March 2019). 
The applicant's direct deposit on 1 February 2019 covered the month of February 2019 
and his money transfer of $196.00 to MAJ  bank account on 28 February 2019 covered 
the month of March 2019.

		(4)  The evidence does not support a finding that the applicant improperly used 
his Government cellular phone to communicate with 1LT  regarding personal matters.

		(5)  The evidence does not support a finding that the applicant and 1LT  violated 
the no-contact order issued on 21 March 2019.

	b.  Section V (Recommendations), the IO recommended:

		(1)  retraining on the proper use and policies regarding Government cellular 
phones the applicant to avoid the perception of misuse;

		(2)  taking no adverse action against the applicant;

		(3)  taking no adverse action against 1LT 

		(4)  taking no adverse action against 2LT 

		(5)  taking no adverse action against 2LT 

		(6)  issuing a no-contact order between MAJ  and 1LT  due to an incident 
mentioned previously in this report and possible future negative conflict;

		(7)  addressing all allegations on both sides of married parties that include 
MAJ  hiding children, the applicant not spending time with children, unpaid debts, and 
obligations or responsibilities not met at their next court hearing; and

		(8)  handling all personal matters between MAJ  and the applicant away from the 
applicant's place of work.

	c.  Section VII (Action by Approving Authority), MG approved the findings with the 
following modifications on 14 May 2019:

		(1)  the findings of fact as follows: "[Applicant] and 1LT  violated the no contact 
after 21 March 2019 in violation of Article 92, Failure to Obey Order or Regulation."

		(2)  the recommendations as follows: "Disapprove 4c and 4e." (Note: This is 
based on the 1 May 2019 IO's memorandum findings which were that no adverse action 
should be taken against the applicant and 1LT 

8.  The applicant was reprimanded in writing by MG  Commanding General, 1st Cavalry 
Division, Fort Hood, TX, on 14 May 2019, wherein he stated:

You are reprimanded for engaging in an inappropriate relationship with a female 
lieutenant while you were married. This improper relationship created an actual and 
clearly predictable adverse impact on discipline, authority, morale, and the ability of 
the command to accomplish the mission in violation of Army Regulation (AR)  
600-20, Army Command Policy. Further, you violated a no contact order by having 
contact with the same lieutenant after 21 March 2019. Your actions are violations of 
[Article] 92, Uniform Code of Military Justice (UCMJ), Failure to Obey Order or 
Regulation, and Article 133, UCMJ, Conduct Unbecoming an Officer and a 
Gentleman.

The United States Army reposed special trust and confidence in you when it 
bestowed upon you the privilege of being an officer. With that privilege comes the 
responsibility to set a standard of professional conduct and impeccable integrity that 
Soldiers can follow. You have failed in that responsibility. Your actions fell below the 
standards expected of a commissioned officer and commander in the United States 
Army, they call into question your integrity, and they cast grave doubts on your 
judgment and future success as an officer.

This reprimand is administrative and not punishment pursuant to the UCMJ. In 
accordance with Army Regulation 600-37, Unfavorable Information, I am considering 
filing this reprimand in your Army Military Human Resource Record. Understand you 
may be subject to other adverse administrative actions and/or punitive action.

Acknowledge receipt of this memorandum. You then have seven days to submit any 
written matters in extenuation and mitigation. If you fail to respond, I will assume you 
elect not to submit matters and will take final filing action without your input.

9.  The applicant acknowledged receipt of the GOMOR on 28 May 2019 and indicated 
his intent to submit written matters in rebuttal.

10.  On 2 June 2019, the applicant submitted rebuttal matters, requesting consideration 
of mitigating facts and requesting recission of the GOMOR or filing locally in lieu of filing 
in his AMHRR. He accepted responsibility for his inability to communicate with his wife 
and her perceptions. He admitted that his marital issues should have been handled 
through the civil court system. He denied he ever had an inappropriate relationship, 
adulterous relationship, or extramarital relationship. He did not violate a no-contact court 
order and the IO cleared him of all alleged issues (see attachment).

11.  After carefully considering the matters submitted in rebuttal, MG  directed filing the 
GOMOR in the applicant's AMHRR on 26 June 2019. The applicant acknowledged the 
filing decision on 1 July 2019.

12.  A review of his AMHRR revealed the GOMOR, 14 May 2019, with allied documents 
is filed in the permanent folder of the applicant's AMHRR.

13.  On 7 August 2019, the Commander, 1st Cavalry Division, notified the applicant that 
he was required to a show cause for retention on active duty under the provisions of 
Army Regulation 600-8-24, paragraphs 4-2b(5) and 4-2b(8), because of misconduct and 
moral or professional dereliction. The specific reasons for elimination were:

	a.  between on or about 4 December 2018 and on or about 27 February 2019, he 
was engaged in an inappropriate relationship with a female lieutenant while he was 
married;

	b.  on 14 May 2019, he received a GOMOR filed in the performance folder of his 
AMHRR relating to the above-referenced misconduct; and

	c.  conduct unbecoming an officer as indicated by the above-referenced items.

14.  The DA Form 1574-2 (Report of Proceedings by BOI), 21 November 2019, shows a 
BOI was convened and determined the following:

	a.  Findings:

		(1)  Between on or about 4 December 2018 and on or about 27 February 2019, 
the applicant did engage in an inappropriate relationship with 1LT  while he was 
married, as prohibited by Army Regulation 600-20, paragraph 4-14. This finding does 
warrant separation.

		(2)  The applicant did receive a GOMOR, 14 May 2019, filed in the performance 
folder of his AMHRR relating to the above-referenced misconduct. This finding does not 
warrant separation.

		(3)  The applicant's conduct was unbecoming an officer as indicated by the 
above-referenced items. This finding does warrant separation.

	b.  Recommendation. The board recommended the applicant's separation from the 
U.S. Army with a general under honorable conditions characterization of service.?
15.  The Headquarters, 1st Cavalry Division, memorandum (Legal Review of Board of 
Inquiry Concerning (Applicant)), 15 January 2020, noted the BOI was legally sufficient. 
The administrative law attorney further provided the following recommendation to the 
Commander, 1st Cavalry Division:

I recommend forwarding, by personal endorsement, the original report of the Board 
of Inquiry proceedings to the Army Human Resources Command (HRC) 
Commander with a recommendation of approval of the Board of Inquiry's 
recommendation in accordance with AR [Army Regulation] 600-8-24, paragraph  
4-19.

16.  In an undated memorandum, the applicant acknowledged receipt of the BOI report 
and elected and submitted an appellate brief. His memorandum to the HRC 
Commander (Rebuttal for (Applicant) BOI Findings and Recommendations dated 
21 November 2019), 16 February 2020, requested that he and 1LT  be retained in the 
U.S. Army and have their GOMORs rescinded immediately. He stated the IO found no 
evidence supporting the allegations against him; he did not violate any regulatory 
guidance or UCMJ articles; the division commander was arbitrary and capricious in his 
decision; and there was a perception of a toxic, hostile, and repressive division 
command climate (see attachment).

17.  The Headquarters, 1st Cavalry Division, memorandum for the HRC Commander 
(Elimination – (Applicant)), 20 February 2020, stated:

I have carefully considered [Applicant's] enclosed officer elimination packet, Board of 
Inquiry proceedings, and chain of command recommendations that [Applicant] be 
discharged from the United States Army under the provisions of Army 
Regulation 600-8-24, Chapter 4.

I recommend approval of the Board of Inquiry's recommendation that [Applicant] be 
discharged with a General (under honorable conditions) characterization of service. I 
recommend that [Applicant] be discharged with a General (under honorable 
conditions) characterization of service.

[Applicant] was furnished a copy of the Board of Inquiry report.

18.  The applicant's records contain his DA Form 67-10-1 (Company Grade Plate (O1-
O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 1 March 2019 
through 28 February 2020, which addressed his duty performance as an assistant 
operations officer, Headquarters and Headquarters Company, 1st Armored Brigade 
Combat Team, 1st Cavalry Division, Fort Hood, TX. His rater was MAJ  Brigade S-3, 
and his senior rater was Colonel  Brigade Commander. His rater and senior rater both 
digitally signed the OER on 23 April 2020. The applicant refused to sign. The OER 
shows in: 

	a.  Part I (Administrative), block i (Reason for Submission), the entry "Annual";

	b.  Part II (Authentication), block d (This is a Referred Report, Do You Wish to Make 
Comments?), a checkmark was placed in the appropriate block, signifying to the 
applicant that he was receiving a referred report. In that same block, a checkmark was 
placed in the "Yes" block, indicating the applicant wished to make comments;

	c.  Part IV (Performance Evaluation – Professionalism, Competencies, and 
Attributes), block b (This Officer's Overall Performance is Rated as), he was rated 
"Unsatisfactory" and his rater entered the following comments: "[Applicant] placed 
himself above his unit and profession by establishing undue familiarity with a junior 
Commissioned Officer. this violated AR [Army Regulation] 600-20, paragraph 4-14b. His 
lack of professional bearing and military discipline displayed an absence of sound 
judgement. He was number 12 of 12 officers that I currently rate";

	d.  Part IV, block c1 (Character), his rater entered the following comments: 
"[Applicant] learned from his actions and improved on his commitment to the Army 
Values over the course of this rating period. He fully supported the EO [Equal 
Opportunity], EEO [Equal Employment Opportunity] and SHARP [Sexual 
Harassment/Assault Response and Prevention] programs";

	e.  Part IV, block c3 (Intellect), his rater entered the following comments: "[Applicant] 
is an intelligent officer but showed a serious lapse in judgment during this rating period";

	f.  Part IV, block c4 (Leads), his rater entered the following comments: "[Applicant] 
was focused heavily on personal transition during this rating period";

	g.  Part IV, block c5 (Develops), his rater entered the following comments: 
"[Applicant] focused much of his efforts on preparing himself for transition from the Army 
and building the credentials he will need for that";

	h.  Part VI (Senior Rater), block a (Potential Compared with Officers Senior Rated in 
Same Grade), the entry "Not Qualified"; and

	i.  Part VI, block c (Comments on Potential), his senior rater entered the following 
comments: "Rated Soldier refuses to sign. [Applicant] put himself above his unit and 
profession by establishing undue familiarity with another Commissioned Officer. This 
violated AR [Army Regulation] 600-20, paragraph 4-14b. His lack of professional 
bearing and military discipline displayed an absence of sound judgement. He does not 
possess the potential for future promotion."?
19.  The applicant acknowledged the evaluation in a letter of referral memorandum on 
22 April 2020 and submitted the following comments on the same date wherein he 
stated:

I will not sign this OER as I have not received the required counseling's [sic] to 
initiate this OER. I will not provide a false statement on a government document. 
The rater is not able to produce these counseling's [sic]. Therefor [sic] the 
administrative data is incorrect.

The rated period in question was not the time of my supposed poor conduct as cited 
by the Rater, MAJ  and Senior Rater, COL . The time period I am being punished for 
was DEC19-FEB 20 [December 2019-February 2020]. During that time period I 
actually received a Most Qualified OER showing I did not put myself 'above the unit.'

If one looks at the AR [Army Regulation] 15-6 [investigation], I was in fact cleared of 
all wrongdoing by the Investigating Officer, MAJ . He has provided sworn statements 
that there was no proof or evidence of any wrongdoing on my part for which I 
received a GOMOR. The paralegals accidently provided me with a copy of the Legal 
Review in which it states that I did not do anything wrong or immoral and that the 
Commanding General can make his own changes 'based on the evidence.' 
MG  then the commanding general of 1st Cavalry Division submitted his own 
findings and punishment without citing any evidence upon which he based his 
decision.

In my rebuttal to [the] HRC Commander I have provided proof that the one making 
allegations for which I have been unfairly punished, my wife MAJ  had an ongoing 
inappropriate relationship during the investigation with MG  and LTC . One 
statement that MG  makes in an email to MAJ  (provided by government counsel) 
state[s] "I will ensure this is taken care of." She had additionally been communicating 
with my battalion commanders and brigade commanders during the investigation, 
proof of which was all handed over by government counsel.

Leadership cannot produce one negative counseling, but they can produce proof 
that there is corruption in 1st CAV [Cavalry Division] with my AR [Army Regulation] 
15-6 [investigation] and my rebuttal to [the] HRC CDR [Commander].

20.  A review of the applicant's AMHRR shows the contested OER is filed in the 
performance folder.

21.  Although not available for review, the HRC Commander forwarded the elimination 
action to the Deputy Assistant SECARMY (Review Boards) (DASA (RB)) via an Ad Hoc 
Review Board for action.

	a.  On or about 26 April 2021, the Ad Hoc Review Board, on behalf of the 
DASA (RB), reviewed the BOI with allied documents, the Army Regulation 15-6 
investigation with allied documents, OERs, and other military documents that were 
forwarded, including a DA Form 199 (Informal PEB Proceedings), 19 January 2021.

	b.  The DA Form 199 shows an MEB recommended the applicant for a PEB. The 
PEB was convened on 19 January 2021 at Joint Base San Antonio, TX, to consider his 
suitability for further service.

		(1)  The PEB determined the applicant had the following three conditions that 
deemed him to be medically unfit for further service: (1) right hip strain with right 
piriformis muscle strain, and right gluteal muscle strain, extension limitation; (2) right hip 
strain with right piriformis muscle strain, and right gluteal muscle strain, flexion 
limitation; and (3) right hip strain with right piriformis muscle strain, and right gluteal 
muscle strain, hip impairment. The onset of these conditions were reported to occur in 
March 2016 while stationed at Fort Bragg, NC, as a result of a midair collision with 
another jumper, resulting in a hard landing during an airborne operation.

		(2)  The board recommended the applicant's separation with severance pay and 
a disability rating of 10 percent that was adjudicated as part of the IDES with the VA.

		(3)  The PEB further noted a number of other medical conditions that were not 
considered unfitting and met retention standards, to include other specified depression, 
PTSD, and TBI.

		(4)  The PEB further explained to the applicant that because his disability rating 
was less than 30 percent and because he had less than 20 years of service, it required 
separation from the service with disability severance pay per Title 10, U.S. Code, 
section 1208 (Active Plus Reserve Component Equivalent Service).

		(5)  The applicant did not concur with the findings, requested a formal hearing, 
and signed the form on 26 January 2021.

22.  The applicant's records contain another DA Form 199 that shows he was 
reconsidered by a PEB at Joint Base San Antonio on 1 April 2021.

	a.  The PEB reconsidered his medical condition of TBI. A review of previously 
submitted documentation confirmed this condition as unfitting. This condition was a 
result of treatment in November 2019 following his deployment to Iraq in 2017. During 
his deployment, he was exposed to multiple improvised explosive devices, rocket-
propelled grenade attacks, and direct fire, and documentation confirms he had multiple 
TBIs.

	b.  The PEB determined his conditions to be unfitting and recommended a disability 
rating of 70 percent and his placement on the Permanent Disability Retired List.

	c.  He concurred with the findings, waived a formal hearing of his case, did not elect 
reconsideration of his VA ratings, and signed the form on 1 April 2021. The findings 
were approved on behalf of the SECARMY on 5 April 2021.

23.  The DASA (RB) memorandum to the Commanding General, HRC (Officer 
Elimination Case/Physical Evaluation Board (Applicant)), 12 May 2021, stated:

On 21 November 2021, a Board of Inquiry recommended [Applicant) be involuntarily 
eliminated from the United States Army based on misconduct and moral or 
professional dereliction, and derogatory information, and derogatory information with 
a General (Under Honorable Conditions) characterization of service. On 19 January 
2021, an Informal Physical Evaluation Board convened and recommended 
separation with severance pay. An Ad Hoc Review Board subsequently reviewed 
both cases.

I have determined [Applicant) will be involuntarily eliminated from the United States 
Army with an Honorable characterization of service. This elimination is based on 
misconduct and moral or professional dereliction (Army Regulation 600-8-24, 
paragraph 4-2b), and derogatory information (Army Regulation 600-8-24,  
paragraph 4-2c).

24.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows he was honorably discharged by reason of unacceptable conduct under the 
authority of Army Regulation 600-8-24 on 26 May 2021. He completed 9 years, 
1 month, and 28 days of net active service. His DD Form 214 further shows he served 
in Iraq from 14 December 2016 through 22 March 2017.

25.  The U.S. Army Physical Disability Agency memorandum (Administrative 
Termination of Physical Evaluation Board (PEB) Findings), 2 September 2021, notes 
the PEB proceedings for the applicant were terminated and the Department of Defense 
(DOD) IDES case disenrolled. The applicant was discharged on 26 May 2021 for 
unacceptable conduct in accordance with Army Regulation 600-8-24.

?
MEDICAL REVIEW:

1.  The Army Review Boards Agency medical advisor reviewed the applicant's records 
in the Electronic PEB System, Interactive Personnel Electronic Records Management 
System, Armed Forces Health Longitudinal Technology Application, Health Artifacts 
Image Management Solutions, and VA Joint Legacy Viewer.

	a.  The applicant, with almost 10 years in service and primary area of 
concentration 19A (Armor Officer), underwent concurrent discharge processing through 
the IDES and administrative processing through chapter separation. He was ultimately 
honorably discharged under the provisions of Army Regulation 600-8-24 for 
"unacceptable conduct." Through IDES processing, the 19 January 2021 informal PEB 
found that the applicant had three right hip conditions that were unfitting for continued 
military service. Under reconsideration, the 1 April 2021 informal PEB added TBI as an 
unfitting condition. The question presented to the Army Review Boards Agency medical 
reviewer is whether the TBI (or other behavioral health condition) contributed to the 
applicant's misconduct, thereby warranting medical disability disposition.

	b.  The applicant was first evaluated for TBI following a hard landing after a jump 
(23 September 2015 Womack Army Medical Center Emergency Department). He 
reported having hit his head and having experienced loss of consciousness. He 
complained of headache, nausea, and emesis. He also had some amnesia from the 
time he exited the plane until impact. He was dragged some distance after impact. 
Afterward, he was told that he was acting "out of it." He denied prior history of TBI. The 
head computed tomography was normal. His diagnoses included, but were not limited 
to, post-concussion syndrome, concussion with loss of consciousness of 30 minutes or 
less, and acute post-traumatic headache. The next day he reported decreased 
concentrating ability and slowed processing. He continued treatment in the Concussion 
Care Clinic at Fort Bragg (September, October, and November 2015). During the 
19 November 2015 TBI follow-up visit, he was cleared to return to full duty and he was 
discharged from the clinic.

	c.  The applicant reported a second hard landing in April 2016, during which he also 
hurt his right hip (14 April 2016 Camp Mackall Periodic Health Assessment). His 
parachute collapsed. He did not seek treatment for any TBI-related symptoms.

	d.  The applicant was deployed 3 months to Iraq (20161212 to 20170322). While in 
Mosul, he saw people killed or wounded (3 April 2017 Post-Deployment Health 
Assessment). He endorsed being in direct combat and having to discharge his weapon. 
He endorsed that the following symptoms "bothered him a lot": trouble sleeping, trouble 
hearing, and becoming easily annoyed or irritable. He also endorsed that headaches, 
feeling tired or having low energy, trouble concentrating on things, and noises in his 
head or ears, "bothered him a little." It was noted that he was not referred for a TBI 
evaluation because there was no significant impairment. The note indicated he had 
already been referred for a PTSD evaluation. During the 18 August 2017 Post-
Deployment Health Reassessment, the applicant endorsed excellent general overall 
feeling/health. However, although he still endorsed experiencing the previously reported 
symptoms, he had not followed through with the previous referral. The PTSD screening 
using PTSD Checklist (PCL)-Civilian (PCL-C) score was 42 (50 is the cutoff for military). 
His depression screening was negative. It was determined that referral was not 
indicated due to there being no significant impairment.

	e.  In November 2017, the applicant self-referred for his first behavioral health (BH) 
evaluation (1 November 2017 Embedded Behavioral Health (EBH)). He reported 
memory and concentration issues, nightmares, flashbacks, and sleep issues (sleeping 
less than 4 hours nightly). He also reported social withdrawal, frustration, irritability, and 
having a hard time concentrating. During a recent class, a bomblet was put in front of 
the class. This triggered a flashback of an event in Iraq when they were hit by a "cluster 
munition," the equivalent of 100 bombs going off. This event is regarded as the cause of 
the applicant's third TBI. Of note, he was awarded a Combat Action Badge for 
21 February 2017. His PCL-5 score of 72 was consistent with significant PTSD 
symptoms reported; his Insomnia Severity Index score of 23 was consistent with severe 
clinical insomnia; and his Generalized Anxiety Disorder-7 score of 21 was consistent 
with severe anxiety symptoms reported. His diagnoses included adjustment disorder 
with mixed anxiety and depressed mood, nightmare disorder, and unspecified insomnia. 
He was seen for several sessions and then in January 2018, he reported being "better 
all around." He was doing well in the Maneuver Captains Career Course and reported 
helping with the instruction. He had also been processing memories with some of his 
battle buddies, which he found had helped immeasurably. He endorsed that this had 
also helped improve communicating with his wife about his combat events.

	f.  Seven months later as part of routine in-processing at Fort Hood, the applicant's 
records were screened for any BH concerns (1 August 2018 and 6 August 2018 Soldier 
Readiness Center Physical Examination Welcome Center). It was noted that he last 
saw BH services in January 2018. He had been advised to schedule an appointment, 
but he did not follow up. During the Fort Hood in-processing review, the applicant 
declined the need for BH treatment. He screened negative for hazardous drinking 
(Alcohol Use Disorders Identification Test score 0), PTSD symptoms (PCL-C score 0), 
and depression (Patient Health Questionnaire-8 score 0). He denied any major life 
stressors (DD Form 2795). He was not on medication for BH nor was he on a restricted 
physical profile. He was informed of BH services available at Fort Hood. He did not seek 
BH services until 10 months later in June 2019.

	g.  In the interim, on 14 May 2019, the applicant received a GOMOR based on the 
finding that he was engaged in an inappropriate relationship with a female lieutenant 
from approximately between 4 December 2018 and 27 February 2019 while he was 
married.

	h.  His OER covering the period 2 June 2017 through 28 February 2019 shows his 
principal duty title as S3.  He functioned as the operations officer for a brigade home 
station mission command detachment comprised of 7 subordinate units and over 
1,400 Soldiers. His senior rater rated him as "Most Qualified" and his comments 
included: "A keen and agile mind is [Applicant's] most valued asset," "Outstanding 
performance from the #1 officer I rate"…"He has unlimited potential"…"promote ahead 
of his peers and send him to resident CHSC [Command and General Staff College 
(CGSC)]…."

	i.  Four months later, the applicant was seen reporting severe PTSD symptoms 
(21 June 2019 EBH). Behavior and Symptom Identification Scale-24 score of 2.88 was 
consistent with high levels of general distress reported; his Generalized Anxiety 
Disorder-7 score of 19 was consistent with moderate anxiety symptoms reported; his 
PCL-5 score of 69 was consistent with significant PTSD symptoms reported; his Alcohol 
Use Disorders Identification Test score of 16 was consistent with possible alcohol 
dependence. There appeared to be no indications of a thought disturbance, delusional 
thought processes, or psychosis. His intellectual functioning appeared to be within 
normal limits. His concept formation and abstract thinking appeared unimpaired. His 
memory appeared intact (remote, recent, short-term and immediate). His insight, 
judgment, and impulse control appeared to be adequate. No alterations to his duty 
status or security clearance were recommended. Both homicidal and suicidal ideation 
were convincingly denied. He met the retention standards of Army Regulation 40-501 
(Standards of Medical Fitness), chapter 3, and Army Regulation 635-200 (Active Duty 
Enlisted Administrative Separations) (presumed to mean Army Regulation 600-8-24). 
Different treatment options were discussed and he was referred for individual therapy.

	j.  The applicant participated in several sessions of prolonged exposure therapy from 
June to August 2019. Of note, on 27 August 2019, the applicant's PCL-5 score was 43 
(moderate PTSD symptoms reported). He requested a change in treatment approach 
from prolonged exposure therapy in order to address his BH needs during the ongoing 
investigation.

	k.  On 4 September 2019, the applicant underwent a command-directed mental 
status evaluation (DA Form 3822 (Report of Mental Status Evaluation)). His mental 
status examination showed no abnormalities. He met the criteria for PTSD, but he 
screened negative for TBI, military sexual trauma, depression, and substance abuse.  
He was deemed to meet the retention standards of Army Regulation 40-501, chapter 3. 
His PTSD condition was assessed to be not so severe as to warrant disposition through 
medical channels. He was able to understand and participate in administrative 
proceedings and he was mentally capable of distinguishing right from wrong. He was 
cleared from a psychiatric perspective for administrative separation under Army 
Regulation 635-200, paragraph 14-12 (presumed to mean Army Regulation 600-8-24).

	l.  He reported participating in self-care by running through Dana's Peak and talking 
more with family. Recently, memory of a traumatic event was triggered after his father 
sent him pictures from deployment (16 September 2019 EBH Team). He recalled 
having stepped on an improvised explosive device during deployment which didn't 
activate; however, later another Soldier stepped on an active improvised explosive 
device and was killed. The applicant felt guilt about this for not warning others. He 
continued treatment for PTSD with BH services until discharge with some success. For 
example, he attended imagery rehearsal therapy to reduce the number of nightmares, 
which did result in less nightmares and improved sleep (25 September 2019 EBH 
Team). He also agreed to trials of prazosin and sertraline, and later fluoxetine, and later 
still bupropion. He also began specific treatment for his TBI.

	m.  During the TBI intake (4 November 2019 Intrepid Spirit Physical Medicine Clinic), 
the following concerns were noted: headaches (treated with ibuprofen); memory (forgets 
tasks and conversation and loses track of time); balance/dizziness (dizzy with heights); 
pain (stated his entire body hurt); sleeping (5 hours with nasal mask, with occasional 
nightmares); BH (feeling anxious/nervous, down/depressed/mood changes with less of 
a filter since September 2015). He participated in a condensed Intrepid Spirit Intensive 
Outpatient Program (IOP) in February/March 2020. During duty hours, he presented to 
the Intrepid Spirit Center for a multidisciplinary approach to his TBI and PTSD 
conditions. He successfully completed the program and was discharged 26 March 2020. 
His diagnoses included: personal history of TBI, highest level of severity mild; and 
unspecified adjustment disorder. It should be noted that the severity of the TBI was 
determined to be mild based on the following parameters: Glasgow Coma Scale 13-15; 
loss of consciousness 0-30 minutes; post-trauma amnesia 0-1 day; and alteration of 
consciousness less than 24 hours.

	n.  The applicant underwent Post-Treatment IOP Neuropsychological Screening in 
May/June 2020 to assess his cognitive functioning and physical and emotional 
difficulties 1 month after his participation in the IOP. His cognitive testing results were in 
the "average" range, as were his memory, attention, visual analysis, and reaction time. 
He did demonstrate impulsive responding, which was noted to be common in Soldiers 
with PTSD. In addition to the test results, he also reported some reduction in his 
physical and emotional symptoms as a result of the IOP.

	o.  His 17 August 2020 Initial Evaluation of Residuals of TBI Disability Benefits 
Questionnaire (DBQ) testing results revealed: objective evidence of mild impairment of 
memory, attention, concentration, or executive functions resulting in mild functional 
impairment; difficulty with short and long term memory; difficulty with concentration/ 
focus; and moderately severe impaired judgment (examples included impulsivity, 
irritability, aggressive outbursts, road rage). His social interaction was inappropriate 
most or all of the time (examples included social anxiety, isolation, avoidance, 
irritability). He was occasionally disoriented to place or situation. His visual spatial 
orientation was mildly impaired (examples included that he would get lost easily and he 
relied on Global Positioning System). Occasionally he had difficulty finding words or 
articulating thoughts.

	p.  His 17 August 2020 PTSD Initial Evaluation DBQ stressors included: Iraq 
deployment, during which he witnessed death, dismemberment, and severe injury; he 
experienced constant sense of high alert, constant threat of attack, and chronic sleep 
deprivation; and blast exposures resulting in TBIs. His symptoms listed for VA rating 
purposes included, but were not limited to, depressed mood, anxiety, suspiciousness, 
panic attacks, chronic sleep impairment, mild memory loss, and impaired impulse 
control, such as unprovoked irritability with periods of violence. Of note, his spatial 
disorientation, and impaired judgement items were NOT checked. The examiner 
indicated that it was not possible to differentiate which symptoms were attributable to 
either the PTSD or TBI condition due to significant overlap of symptoms. However, they 
did assess that the occupational and social impairment due to the PTSD condition was 
with reduced reliability and productivity.

	q.  The 29 September 2020 EBH Team, Fort Hood, noted fluoxetine was effective for 
treating his anxiety and prazosin resulted in decreased nightmares. His mental status 
examination noted his judgment and insight were assessed to be "good." No impulsivity 
was noticed during the session; he was able to concentrate.

	r.  During the 18 November 2020 MEB proceedings, the following conditions were 
determined to meet the retention standards of Army Regulation 40-501, chapter 3: 
PTSD, other specified depression, alcohol use in remission, and TBI.  The MEB 
examiner indicated the PTSD and TBI conditions were currently under treatment; 
however, they had not required profiling. In addition, the MEB examiner noted the 
applicant's 17 August 2020 Montreal Cognitive Assessment test score was 27/30 
(normal range is equal to or greater than 26/30).

	s.  His 18 November 2020 permanent physical profile ratings showed "3" for right hip 
injury/pain and "2" for pauses in breathing during sleep. The PTSD and TBI conditions 
were not listed on the permanent physical profile rating.

	t.  During the 22 December 2020 EBH visit, the following was noted concerning the 
applicant's mental status examination: his thought processing was coherent, 
spontaneous, and of average productivity, and his thought content was void of 
suicide/homicide ideations and hallucinations. His judgment and insight were good. No 
impulsivity was noted during this session. His concentration was normal. There were no 
duty restrictions necessitating a limiting physical profile rating. The applicant was 
assessed to meet the retention standards of Army Regulation 40-501, chapter 3, and 
Army Regulation 635-200 (presumed to mean Army Regulation 600-8-24) for 
fitness/suitability for continued service. He remained world-wide qualified and cleared 
for any temporary duty or deployment. No alterations to duty status or security 
clearance were recommended. His prognosis was good.

	u.  From 16 September 2020 to 25 February 2021, the applicant participated in nine 
post-IOP sessions with continued success. For example, since processing an intrusive 
dream on 13 January 2021, which contained content related to his experience in Mosul, 
he indicated the troubling dream had reduced from 4 times to 1-2 weekly (22 December 
2020 Intrepid Spirit Physical Medicine).

	v.  The 24 June 2020 Disability Evaluation System (DES) Commander's 
Performance and Functional Statement (DA Form 7652) indicated the applicant's 
initiation of elimination date of 13 August 2019. Of note, the command stated that due to 
the applicant's multiple TBIs, along with his mental health condition, these "prevent him 
from being able to concentrate, process information, communicate effectively, and deal 
with stress."

	w.  The 19 January 2021 informal PEB found his right hip strain with right piriformis 
muscle strain and right gluteal muscle strain (flexion limitation, extension limitation, and 
hip impairment) unfitting for continued military service.

	x.  The 1 April 2021 informal PEB under reconsideration, added the applicant's TBI 
condition as an unfitting condition. The PEB narrative documented on the DA Form 199, 
indicated the decision was based on the VA compensation and pension examination as 
well as the 24 June 2020 Company Commander's Statement (DA Form 7652). The 
condition was rated at 70-percent disabling as determined by the VA and documented 
in the 2 December 2020 VA DES proposed rating decision. The rating included both the 
TBI and PTSD conditions because of overlapping symptoms.

	y.  The record showed the applicant was diagnosed with PTSD and TBI. The TBIs 
were noted to occur in September 2015, April 2016, and February 2017. After each 
instance, there was recovery and subsequent return to duty or there was no apparent 
impact on performance of duty (no physical profiling was indicated). Based on common 
current classification of TBI severity, the highest level of severity of the applicant's TBI 
was assessed to be "mild." The most recent TBI occurred in February 2017 after which 
he successfully completed the following courses: Air Assault Course April 2017, Armor 
Maneuver CPTs Career Course in May 2018, Calvary Leader Course June 2018, and 
Maintenance Leaders Course June 2018. Notwithstanding the Initial TBI Evaluation 
DBQ examiner assessing at that time that the applicant had moderately impaired 
judgment; during the prior multiple assessments by several different treating providers, 
his judgment was assessed to be "adequate" or "good." The command's statement 
noted above also appeared to be at variance with the senior rater's observations in the 
OER covering the contemporaneous period of the misconduct (see comments above). 
In addition, the rater noted "[Applicant] regularly demonstrated sound judgment and key 
understanding of organizational behavior." It should be noted that during the period of 
the inappropriate relationship (approximately between 4 December 2018 and 
27 February 2019), there were no BH records available for review. Despite the informal 
PEB finding under reconsideration, that the applicant's TBI condition was unfitting for 
continued military service, there was no objective evidence that the TBI or PTSD 
condition prevented the applicant from making good decisions or rendered him unable 
to distinguish right from wrong. Therefore, neither the TBI nor the PTSD condition is 
mitigating for the applicant participating in an inappropriate relationship.

2.  On 15 February 2023, the Army Review Boards Agency provided a copy of the 
medical advisory opinion to the applicant through his attorney. His case was placed on 
hold for 14 days to allow him the opportunity to submit comments. No response was 
received.

BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the applicant's military records, a majority of the Board found that relief was 
warranted. Counsel's contentions, the applicant's military records, and regulatory 
guidance were carefully considered.

2.  The Board concluded an error occurred when the applicant’s elimination packet was 
forwarded to the Deputy Assistance Secretary of the Army (Review Boards) (DASA 
(RB)) for review without the final decision of the Physical Evaluation Board. The Board 
next considered the impact of the error and weighed the nature of the misconduct 
against the severity of the applicant’s combat related disability. 

3. A majority of the Board agreed that the preponderance of the evidence showed the 
error led to an injustice when the DASA (RB) directed the applicant be separated for 
misconduct rather than medically retired. The majority determined the record should be 
corrected to show the applicant medically retired with a 70 percent disability rating.

4. The member in the minority determined the seriousness of the misconduct 
outweighed consideration of the applicant’s disability. 
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief. As a result, the Bord recommends that all Department of the 
Army records of the individual concerned be corrected to show the applicant medically 
retired on 26 May 2021 with a 70 percent permanent disability rating in accordance with 
the findings of the PEB that convened on 1 April 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 15-6 (Procedures for Administrative Investigations and Boards of 
Officers), effective 1 May 2016, establishes procedures for conducting preliminary 
inquiries, administrative investigations, and boards of officers when such procedures 
are not established by other regulations or directives. The primary function of any 
investigation or board of officers is to ascertain facts and to report them to the 
appointing authority. It is the duty of the IO or board to ascertain and consider the 
evidence on all sides of each issue thoroughly and impartially and to make findings and 
recommendations that are warranted by the facts and that comply with the instructions 
of the appointing authority.

	a.  Paragraph 2-8b (Action by the Approval Authority) states:

		(1)  Upon receipt of a completed investigation or board containing the legal 
review discussed in paragraph 2-7 (Legal Review), the approval authority will conduct a 
final review of the IO's or board's findings and recommendations and the legal review. 
The approval authority will notify the IO or board president if further action, such as 
taking further evidence or making additional findings or recommendations, is required. 
Such additional proceedings will be conducted under the provisions of the original 
appointing memorandum, including any modifications, and will be separately 
authenticated per paragraph 3-15 below.

		(2)  If applicable, the approval authority will ensure that the provisions of 
paragraph 1-11 have been satisfied.

		(3)  Unless otherwise provided by another regulation or directive, the approval 
authority is neither bound nor limited by the findings or recommendations of an IO or 
board.

		(a)  The approval authority may approve, disapprove, modify, or add to the 
findings and recommendations, consistent with the evidence included in the report of 
proceedings. The approval authority may also concur in or disagree with 
recommendations that cannot be implemented at his or her level. The approval authority 
may take action different than that recommended with regard to a respondent or other 
individual, unless the specific regulation or directive under which the investigation or 
board was appointed provides otherwise. The approval authority will complete the 
applicable portion of the DA Form 1574-1 (Report of Proceedings by Investigating 
Officer) or DA Form 1574-2 (Report of Proceedings by Board of Officers), annotating his 
or her approval, disapproval, or modification of the findings and recommendations, and 
making comments regarding follow-on action, if warranted.

		(b)  The approval authority may consider any relevant information in making a 
decision to take adverse action against an individual, even information that the IO or 
board did not consider. The approval authority will attach that information to the report 
of investigation, if available.

		(c)  The approval authority should follow through with the recommendations that 
he or she approves and maintain a record of the action taken. When the approval 
authority concurs with recommendations that cannot be implemented at his or her level, 
he or she should forward the findings and recommendations to the appropriate authority 
with his or her recommended action.

	b.  Paragraph 5-2 states IOs may use whatever method they deem most efficient 
and effective for acquiring information. Although witnesses may be called to present 
formal testimony, information may also be obtained by personal interview, 
correspondence, telephone inquiry, or other informal means.

2.  Army Regulation 600-20 (Army Command Policy), 6 November 2014, in effect at the 
time, prescribed the policies and responsibilities of command, which include the Army 
Ready and Resilient Campaign Plan, military discipline and conduct, the Army EO 
Program, and the Army SHARP Program (formerly the Army Sexual Assault Victim 
Program).

	a.  Paragraph 4-14a states the term "officer" used in this paragraph includes both 
commissioned and warrant officers, unless otherwise stated. The term 
"noncommissioned officer" refers to a Soldier in the grade of corporal through 
command sergeant major/sergeant major. The term "junior enlisted Soldier" refers to a 
Soldier in the grade of private through specialist. The provisions of this paragraph apply 
to both relationships between Soldiers in the Active and Reserve Components and 
between Soldiers and personnel of other military services. This policy is effective 
immediately, except where noted below, and applies to opposite-gender relationships 
and same-gender relationships.

	b.  Paragraph 4-14b states Soldiers of different grades must be cognizant that their 
interactions do not create an actual or clearly predictable perception of undue familiarity 
between an officer and an enlisted Soldier, or between a noncommissioned officer 
(NCO) and a junior enlisted Soldier. Examples of familiarity between Soldiers that may 
become "undue" can include repeated visits to bars, night-clubs, eating establishments, 
or homes between an officer and an enlisted Soldier, or an NCO and a junior enlisted 
Soldier, except for social gatherings, that involve an entire unit, office, or work section. 
All relationships between Soldiers of different grades are prohibited if they:

		(1)  compromise, or appear to compromise, the integrity of supervisory authority 
or the chain of command;?
		(2)  cause actual or perceived partiality or unfairness;

		(3)  involve, or appear to involve, the improper use of grade or rank or position for 
personal gain;

		(4)  are, or are perceived to be, exploitative or coercive in nature; or

		(5)  create an actual or clearly predictable adverse impact on discipline, authority, 
morale, or the ability of the command to accomplish its mission.

	c.  Paragraph 4-14c(2) states certain types of personal relationships between 
officers and enlisted Soldiers or between NCOs and junior enlisted Soldiers are 
prohibited. Prohibited relationships include dating, shared living accommodations other 
than those directed by operational requirements, and intimate or sexual relationships 
between officers and enlisted personnel or between NCOs and junior enlisted Soldiers.

	d.  Paragraph 4-14e states all military personnel share the responsibility for 
maintaining professional relationships. However, in any relationship between Soldiers of 
different grade or rank, the senior member is generally in the best position to terminate 
or limit the extent of the relationship. Nevertheless, all members may be held 
accountable for relationships that violate this policy.

3.  Army Regulation 600-8-24 (Officer Transfers and Discharges), 8 February 2020, 
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 1-25 
(Referral for Physical Disability Evaluation) states if a commissioned or warrant officer is 
being processed for release from active duty, separation, or retirement or has been 
referred for elimination action, and the officer is issued a DA Form 3349 (Physical 
Profile) with a P3/P4 in at least one of the profile serial factors for a medical condition(s) 
that meet medical retention standards of Army Regulation 40-501, the officer will be 
processed as follows:

	a.  A commissioned or warrant officer under investigation for an offense chargeable 
under the UCMJ that could result in dismissal or punitive discharge may not be referred 
for or continue disability processing unless:

		(1)  the investigation ends without charges,

		(2)  the commander exercising proper court-martial jurisdiction dismisses the 
charges, or

		(3)  the commander exercising proper court-martial jurisdiction refers the charge 
for trial to a court-martial that cannot adjudge such a sentence.?
	b.  When a commissioned or warrant officer, as applicable, is being processed for 
one of the actions listed in paragraphs 1-25b(1) through 1-25b(4), the officer will be 
processed in accordance with the provisions of this regulation and through the 
MEB/PEB system pursuant to Army Regulation 635-40. If the result of the physical 
disability evaluation is a finding of physical fitness, the U.S. Army Physical Disability 
Agency will approve the findings for the SECARMY and forward the proceedings to the 
Commander, HRC, Attention: AHRC-OPD-A, 1600 Spearhead Division Avenue, 
Fort Knox, KY  40122-5400, to be processed with the other action. If a physical disability 
evaluation results in a finding of physical unfitness, both actions will be forwarded by 
HRC (AHRC-OPD-A) to the SECARMY or designee for determination of appropriate 
disposition:

		(1)  referral to the Department of the Army Active Duty Board, except when the 
board is convened as a result of an imposed reduction in force;

		(2)  involuntary release from active duty due to civil conviction or moral turpitude;

		(3)  referral for elimination under chapter 4 of this regulation; or

		(4)  request for separation, resignation, or retirement in lieu of elimination.

	c.  Chapter 4 (Eliminations) prescribes the rules and steps for eliminating officers for 
substandard performance of duty, misconduct, moral or professional dereliction, and in 
the interests of national security.

		(1)  Paragraph 4-2b (Misconduct, Moral or Professional Dereliction, or in the 
Interest of National Security) states while not all inclusive, when one of the following or 
similar conditions exist, elimination action may be or will be initiated as indicated to 
include, in part:

*	acts of personal misconduct 
*	conduct unbecoming an officer

		(2)  Paragraph 4-2c (Derogatory Information) states the following reasons require 
an officer's record to be reviewed for consideration of terminating appointment. Standing 
alone, one of these conditions may or 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:

		(a)  punishment under UCMJ, Article 15;

		(b)  conviction by court-martial;

		(c)  the final denial or revocation of an officer's Secret security clearance by 
appropriate authorities acting pursuant to DOD Instruction 5200.02 and Army 
Regulation 380-67 (Personnel Security Program);

		(d)  a relief-for-cause OER issued in accordance with Army Regulation 623-3 
(Evaluation Reporting System);

		(e)  adverse information filed in the AMHRR in accordance with Army 
Regulation 600-37;

		(f)  failure of a course at a service school; or

		(g)  any substantiated adverse finding or conclusion from an officially 
documented investigation, proceeding, or inquiry (except minor traffic infractions).

		(3)  Paragraph 4-3 (Medical Condition) states an officer referred or 
recommended for elimination under this chapter who does not meet medical retention 
standards will be processed through both the provisions of this regulation and through 
the MEB/PEB process as described in paragraph 1-25.

		(4)  Paragraph 4-6 states the BOI's purpose is to give the officer a fair and 
impartial hearing determining if the officer will be retained in the Army. Through a formal 
administrative investigation conducted under Army Regulation 15-6 and this regulation, 
the BOI establishes and records the facts of the respondent's alleged misconduct, 
substandard performance of duty, or conduct incompatible with military service. Based 
upon the findings of fact established by its investigation and recorded in its report, the 
board then makes a recommendation for the officer's disposition, consistent with this 
regulation. The Government is responsible to establish, by preponderance of the 
evidence that the officer has failed to maintain the standards desired for their grade and 
branch or that the officer's Secret-level security clearance has been permanently denied 
or revoked by appropriate authorities acting pursuant to DOD Directive 5200.2-R and 
Army Regulation 380-67. In the absence of such a showing by the Government, the 
board will retain the officer. However, the respondent is entitled to produce evidence to 
show cause for his retention and to refute the allegations against him. The respondent's 
complete AMHRR will be entered into evidence by the Government and considered by 
the BOI.

		(5)  Paragraph 4-17a (Board of Review or Ad Hoc Review Board) states an 
officer recommended for elimination by a BOI will have his/her case referred to an 
Ad Hoc Review Board. The Ad Hoc Review Board is appointed by the SECARMY or 
designee and has the same board composition as the BOI. The Ad Hoc Review Board, 
after thorough review of the records of the case, will make recommendations to the 
SECARMY or designee as to whether the officer should be retained in the Army. 
Appearance by the respondent (or the counsel) is not authorized.

		(6)  Paragraph 4-17c states when the board recommends elimination from the 
Army (to include type of discharge and characterization, if applicable), the 
recommendation will be transmitted to the SECARMY or designee, who makes the final 
decision.

4.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes SECARMY decision-making authority as directed by Congress in chapter 61 
and in accordance with DOD Directive 1332.18 (DES) and Army Regulation 635-40.

5.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or 
Separation) establishes the Army DES according to the provisions of Title 10, 
U.S. Code, chapter 61, and DOD Instruction 1332.18.

	a.  It sets forth policies, responsibilities, and procedures that apply in determining 
whether a Soldier is unfit because of physical disability to reasonably perform the duties 
of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical 
disability, this regulation provides for disposition of the Soldier according to applicable 
laws and regulations. A decision is made as to the Soldier's medical qualifications for 
retention based on the criteria in Army Regulation 40-501.

	b.  Paragraph 4-9 (Disenrollment from the DES as a Result of Certain Adverse 
Circumstances or Actions) states Soldiers pending adverse actions or involuntary 
administrative action are eligible for the DES as set forth in paragraph 4-3. 
Disenrollment from the DES, or termination of the case for any other reason, will occur 
no earlier than as prescribed below. Officers pending an administrative elimination 
action are disenrolled from the DES on the date the elimination action is approved by 
the Army Review Boards Agency (i.e., Ad Hoc Review Board).

6.  Army Regulation 40-501 (Standards of Medical Fitness), effective 27 July 2019, 
governs medical fitness standards for enlistment, induction, appointment, retention, 
separation, and retirement. Chapter 3 (Medical Fitness Standards for Retention and 
Separation, including Retirement) provides guidance on the various medical conditions 
and physical defects that may render a Soldier unfit for further military service and that 
fall below the standards required for service. These medical conditions and physical 
defects, individually or in combination, are those that: significantly limit or interfere with 
the Soldier's performance of his/her duties, may compromise or aggravate the Soldier's 
health or well-being if the Soldier were to remain in military service, may compromise 
the health or well-being of other Soldiers, or may prejudice the best interests of the 
Government if the individual Soldier were to remain in military service.

7.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent. 
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 
30 percent.

8.  Army Regulation 600-37 (Unfavorable Information) 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.  An administrative memorandum of reprimand may be issued by an individual's 
commander, by superiors in the chain of command, and by any general officer or officer 
exercising general court-martial jurisdiction over the Soldier. The memorandum must be 
referred to the recipient and the referral must include and list applicable portions of 
investigations, reports, or other documents that serve as a basis for the reprimand. 
Statements or other evidence furnished by the recipient must be reviewed and 
considered before a filing determination is made.

	b.  A memorandum of reprimand may be filed in a Soldier's Official Military 
Personnel File (OMPF) only upon the order of a general officer-level authority and is to 
be filed in the performance folder. The direction for filing is to be contained in an 
endorsement or addendum to the memorandum. If the reprimand is to be filed in the 
OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the 
reprimand and associated documents are permanent unless removed in accordance 
with chapter 7 (Appeals).

	c.  Paragraph 7-2 (Policies and Standards) provides that once an official document 
has been properly filed in the OMPF, it is presumed to be administratively correct and to 
have been filed pursuant to an objective decision by competent authority. Thereafter, 
the burden of proof rests with the individual concerned to provide evidence of a clear 
and convincing nature that the document is untrue or unjust, in whole or in part, thereby 
warranting its alteration or removal from the OMPF.

	d.  Only letters of reprimand, admonition, or censure may be the subject of an 
appeal for transfer to the restricted folder of the OMPF. Such documents may be 
appealed on the basis of proof that their intended purpose has been served and that 
their transfer would be in the best interest of the Army. The burden of proof rests with 
the recipient to provide substantial evidence that these conditions have been met.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) 
governs the composition of the OMPF and states the performance folder is used for 
filing performance, commendatory, and disciplinary data. Once placed in the OMPF, a 
document becomes a permanent part of that file. The document will not be removed 
from or moved to another part of the OMPF unless directed by certain agencies, to 
include this Board.

10.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by veterans for modification of their 
discharges due in whole or in part to: mental health conditions, including PTSD, 
traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal 
consideration to veterans petitioning for discharge relief when the application for relief is 
based, in whole or in part, on those conditions or experiences. The guidance further 
describes evidence sources and criteria and requires boards to consider the conditions 
or experiences presented in evidence as potential mitigation for misconduct that led to 
the discharge.

11.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to 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 court-martial forum. However, the 
guidance applies to more than clemency from a sentencing in a court-martial; it also 
applies to any other corrections, including changes in a discharge, which may be 
warranted on equity or relief from injustice grounds. This guidance does not mandate 
relief, but rather provides standards and principles to guide BCM/NRs 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. 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)	AR20220008662


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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