IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220009915 APPLICANT REQUESTS: reconsideration of his previous request for: * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 15 October 2013, from the restricted folder of his Army Military Human Resource Record (AMHRR) * removal of the general officer memorandum of reprimand (GOMOR), 15 October 2013, from the restricted folder of his AMHRR * removal of the DA Form 3975 (Military Police Report (MPR)), 3 September 2013, from the restricted folder of his AMHRR * removal of the U.S. Army Human Resources Command (HRC) Memorandum (Promotion Review Board Results (PRB AP1604-26)), 7 December 2016, from the restricted folder of his AMHRR * reinstatement of his name to the Fiscal Year 2015 Major (MAJ) Promotion List with retroactive date of rank to MAJ/O-4 and constructive service credit from the date of his separation * amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 August 2017 to show – * his rank/grade as MAJ/O-4 * constructive service credit * his type of separation as "Retirement" * the authority and narrative reason for separation as Temporary Early Retirement Authority (TERA) 2012-2025 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), with 20 attachments and addendum in support: * Attachment 1 – Request for Record Correction Letter * Attachment 2 – Army Board for Correction of Military Records (ABCMR) Letter, 27 July 2021, with Record of Proceedings, 30 December 2020 * Attachment 3 – Excerpt of Title 10, Armed Forces, Article 807, Section 7 (Apprehension) * Attachment 4 – Excerpt of Manual for Courts-Martial, United States, 2019 * Attachment 5 – Excerpt of Manual for Courts-Martial, United States, 2019, Chapter III (Initiation of Charges; Apprehension; Pretrial Restraint; Related Matters) * Attachment 6 – United States versus Rhodes, Volume 47, Military Justice, Case 790, 1998 * Attachment 7 – Excerpt of Army Regulation 27-10 (Military Justice) * Attachment 8 – Department of Veterans Affairs Letter, 5 October 2017 * Attachment 9 – four DA Forms 67-10-1 (Company Grade Plate Officer Evaluation Reports) covering the periods 1 June 2013 through 22 February 2017 * Attachment 10 – DA Form 2627, 15 October 2013, with Headquarters, Eighth Army Memorandum (Letter of Reprimand), 15 October 2013 * Attachment 11 – DD Form 214 * Attachment 12 – DA Form 2823 (Sworn Statement), 3 September 2013 * Attachment 13 – Excerpts from his AMHRR, DA Form 2627 and Allied Documents * Attachment 14 – excerpt, Fiscal Year 2015 MAJ Promotion List * Attachment 15 – Under Secretary of Defense Memorandum (Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations), 25 July 2018 * Attachment 16 – Headquarters, 1st Special Warfare Training Group (Airborne), Memorandum (Letter of Endorsement for (Applicant)), 17 February 2016 * Attachment 17 – Headquarters, 1st Special Warfare Training Group (Airborne), Memorandum (Letter of Endorsement for (Applicant)), 17 February 2016 * Attachment 18 – HRC Memorandum (Promotion Review Board Results), 7 December 2016, with Secretary of the Army Memorandum (Promotion Review Board, Fiscal Year 2015, MAJ, Army, Force Sustainment Promotion Selection Board), 16 December 2016 * Attachment 19 – HRC Email ((Applicant) Notification of Separation Due to Non- selection for Promotion), 23 January 2017 * Attachment 20 – HRC Memorandum (Delay of Promotion and Referral to a Promotion Review Board), 8 February 2016 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20200008055 on 30 December 2020. 2. The applicant checked the blocks for Post-Traumatic Stress Disorder (PTSD) and Traumatic Brian Injury (TBI) in item 13 (Are Any of the Following Issues/Conditions Related to Your Request) of his DD Form 149. These conditions were not addressed in the previous ABCMR record of proceedings and warrant consideration at this time. 3. The applicant states: a. The above regulations listed as supporting document state any person authorized under regulations governing the Armed Forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it. A person subject to the UCMJ or trial thereunder may be apprehended for an offense triable by courts-martial upon probable cause to apprehend. Probable cause to apprehend exists when there are reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended committed it. Persons authorized to apprehend may also apprehend persons subject to the UCMJ who take part in quarrels, frays, or disorders, wherever they occur. b. On or about 3 September 2013, he was apprehended by the U.S. Army Garrison Yongsan Military Police for suspicion of curfew violation. During the Article 15 proceedings he was found not guilty of violating curfew (Article 92), but he was found guilty of fleeing apprehension (Article 92). Regulations clearly state authorized personnel to apprehend a person subject to the UCMJ may do so upon reasonable belief that an offense has been committed and the person apprehended committed it. It is very clear he did not commit the suspected offense (curfew violation) for which he was apprehended. The Article 92 guilty charge of fleeing apprehension and the GOMOR he received are in direct violation of above mentioned regulations. c. Cleary he did not commit the offense of curfew violation that the military police suspected him of committing; therefore, there are no bases and grounds for the military police to apprehend him. The procedural errors and unfairness in his case are that his commander did not follow the regulations mentioned above. First, in order to have grounds for apprehension, the suspect must have committed the offense. Secondly, mere suspicion is not enough basis and grounds for apprehension. Thirdly, he must be found guilty of the offense that he was suspected of committing in order to have grounds and bases to be guilty of fleeing apprehension. When his commander found him not guilty of suspected curfew violation, he should have also found him not guilty of fleeing apprehension, or he should have withdrawn the charge of fleeing apprehension in order to comply with regulations. d. Army Regulation 27-10 (Military Justice) states the basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15 or punishment has resulted in a clear injustice. It is very clear his rights as a Soldier have been violated. The fact that he was apprehended for suspicion of an offense, found not guilty of the offense he was suspected of, and found guilty of fleeing apprehension is a violation of above mentioned regulations. These are the unwaived legal or factual errors that warrant removal of the DA Form 2627, GOMOR, and Police Report from his AMHRR restricted folder.? e. He was referred to the Promotion Review Board due to the aforementioned derogatory information filed in the restricted folder of his AMHRR, which resulted in his removal form the Fiscal Year 2015 MAJ Promotion List and separation from the military. Without this derogatory information, he would have been promoted to MAJ/O-4 in accordance with his sequence number 0007 on the Fiscal Year 2015 MAJ Promotion List. The guilty charge of fleeing apprehension, GOMOR, and MPR he received are inherently unfair, a clear injustice, and need to be set aside and dismissed. All derogatory information should be removed from his AMHRR. f. The apprehending officer did not follow the Rules for Courts-Martial, as he did not commit the suspected offense of curfew violation, which was the basis and grounds for the military police apprehension. Therefore, the guilty finding for violating Article 95 (Resistance, Flight, Breach of Arrest, and Escape), UCMJ, should be set aside and dismissed. This case is similar to United States versus Rhodes, 1998. g. His officer evaluation reports show his "Most Qualified" potential ratings and positive comments. He was selected for promotion by the Fiscal Year 2015 MAJ Promotion Board and assigned sequence number 007. These reports of his exceptional aptitude, character, and professional achievement support his requested relief. h. On 2 August 2017, he was diagnosed with PTSD and TBI. He deployed to both Iraq in 2009 and Afghanistan in 2011, and these conditions are related to his military service. These deployments occurred right before he was apprehended on or about 3 September 2013. Although he suffers from these conditions, the procedural errors and unfairness articulated above cannot be ignored. i. In accordance with the Secretary of Defense memorandum (Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations), 25 July 2018, the Board should consider: (1) His candor; whether his punishment, including any collateral consequences, were too harsh; the aggravating and mitigating facts; his positive or negative post- conviction conduct; the degree to which the requested relief is necessary, his character and reputation; and his job history. (2) Relief should not be reserved only for those with exceptional aptitude; rather character and rehabilitation should weigh more heavily than achievement alone. His service displays exceptional aptitude, character, and professional achievement to support the requested relief. (3) Evidence in support of relief may come from sources other than a veteran's service record. Army regulations, his VA disability, the Under Secretary of Defense memorandum and his letters of endorsement are his additional evidence and sources. (4) A veteran's or service member's sworn testimony alone, oral or written, may establish the existence of a fact supporting relief. His sworn statement states: "I did not run from the MP [military police], I did not even know they were there, until I was apprehended." (5) Requests for relief based in whole or in part on a mental health condition, including PTSD and TBI, should be considered for relief on equitable, injustice, or clemency grounds whenever there is insufficient evidence to warrant relief for an error or impropriety. (6) Relief is generally more appropriate for nonviolent offenses than for violent offenses. His case involves nonjudicial punishment under the provisions of Article 15 and is nonviolent. He cooperated when he was apprehended. 4. The applicant was serving in the Regular Army in the rank/grade of captain (CPT)/ O-3 when he was named the subject of an MPR, 3 September 2013, for the offenses of "Resisting Apprehension (Article 95, UCMJ)" and "Failure to Obey General Order – Curfew Violation (Article 92, UCMJ)." Section VII (Narrative) of the MPR states: a. At 0104 hours, 3 September 2013, Unit 9, via radio, notified this station of a curfew violation off post. Unit 9 observed two individuals who appeared to be service members in violation of the U.S. Forces Korea-wide curfew. b. When the two individuals spotted Unit 9, they began to run in the opposite direction and crossed the street. Unit 9 was able to catch up to both individuals and Staff Sergeant (SSG) attempted to place one individual under apprehension, later identified as CPT who resisted, causing both himself and SSG to fall to the ground. When they went to the ground, CPT struck SSG several times in the ribs. The other individual was stopped without incident and later identified as the applicant. c. At 0800 hours, the applicant was advised of his legal rights, which he waived, rendering a written sworn statement denying the above offenses. He was further processed and released to his unit. 5. His DA Form 2823, 3 September 2013, states, in part: a. He did not violate curfew or resist apprehension. He and CPT were on their way back to his residence and made a hasty attempt to be back before 0100 hours. Just before their apprehension by the military police, he looked at his watch and it was 0057 hours. They crossed the road at about 0053 hours. He ran across the road to avoid an oncoming motorcycle. b. Acknowledgment of the time was also confirmed by SSG a military policeman, when he was talking to his commander, noting they had 2 minutes remaining before the curfew. c. When asked why he didn't stop when the military police shouted, he responded that he did not hear shouting from the military police. d. When asked why he ran away from the military police if he had sufficient time to get back to your residence, he responded that he did not run from the military police. He did not even know they were there until he was apprehended. 6. The 176th Financial Management Support Unit memorandum from the commander (Curfew Violation), 7 October 2013, states: a. At about 1200 hours, 6 September 2013, the applicant, CPT and he went to a store where the applicant was apprehended by the military police. b. The MPR said that both the applicant and CPT were running when they were apprehended, they both swore that it was 0058 hours when they were stopped and that they were within 2 minutes from their residence. c. He ran with them both to CPT residence and it only took them 1 minute and 37 seconds. 7. On 15 October 2013, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for fleeing apprehension by SSG an Armed Forces policeman, a person authorized to apprehend, at or near U.S. Army Garrison Yongsan on or about 3 September 2013. This is in violation of Article 95, UCMJ. a. In a closed hearing, having considered all matters presented, the Commanding General, Eighth Army, found the applicant not guilty of all specifications. b. The commanding general directed filing the original DA Form 2627 in the restricted folder of the applicant's AMHRR. c. The applicant elected not to appeal. His punishment consisted of a written reprimand. d. A review of the applicant's AMHRR shows the DA Form 2627 and allied documents were posted to his restricted folder on 4 November 2013. His allied documents consisted of the Military Police Report with enclosures; GOMOR, 15 October 2013; and Officer Record Brief, 16 September 2013. 8. The Headquarters, Eighth Army, memorandum from the commanding general (Letter of Reprimand), 15 October 2013, reprimanded the applicant for fleeing apprehension by a military policeman in the execution of his duties. The commanding general stated: a. On or about 3 September 2013, the applicant fled from military police who were attempting to stop him for a suspected curfew violation. Though he did eventually cooperate with the military police, it was only after he and his fellow Soldier were caught up to and after the other Soldier got into an altercation with the military police. b. The reprimand is imposed as punishment under Article 15, UCMJ. 9. The HRC memorandum (Promotion Review Board Results), 7 December 2016, notified the applicant that his records were referred to a Department of the Army Promotion Review Board for reconsideration of his promotion status. The Secretary of the Army decided to remove him from the promotion list. a. Enclosed was a copy of the Secretary of the Army memorandum (Promotion Review Board, Fiscal Year 2105 MAJ, Army, Force Sustainment Promotion Selection Board), 6 December 2016, directing removal of his name from the promotion list. b. A review of the restricted folder of his AMHRR shows a folder named "Removal Promotion" titled "Document Approving Recommendation for Removal from a Promotion List," containing the two memorandums posted on 16 December 2016. 10. In an email ((Applicant) Notification of Separation Due to Non-selection for Promotion), 23 January 2017, HRC notified him of his non-selection for promotion and of his involuntary separation from active duty. 11. His subsequent officer evaluation reports covering the periods 1 June 2013 through 22 February 2022 show his raters consistently rated his performance as either "EXCELS" or "PROFICIENT" and provided positive comments. His senior raters consistently rated his potential as either "MOST QUALIFIED" or HIGHLY QUALIFIED" and provided positive comments on his potential and recommendations for promotion. 12. He was honorably discharged from the Regular Army on 31 August 2017. His DD Form 214 shows in: * item 4a (Grade, Rate, or Rank) – CPT * item 4b (Pay Grade) – O-3 * item 12c (Net Active Service This Period) – 12 years, 4 months, and 1 day * item 23 (Type of Separation) – Discharge * item 25 (Separation Authority) – Army Regulation 600-8-24 (Officer Transfers and Discharges), Paragraph 5-9 * item 26 (Separation Code) – JGB * item 28 (Narrative Reason for Separation) – Non-Selection, Permanent Promotion 13. The VA Rating Decision, 23 September 2017, and VA letter, 5 October 2017, show the VA granted him a 70-percent disability rating for PTSD and TBI effective 2 August 2017. 14. On 30 December 2020, the ABCMR denied his request for removal of unfavorable information from his AMHRR, his request for reinstatement of his name on the Fiscal Year 2015 MAJ Promotion List with retroactive promotion with pay and benefits, and amendment of his discharge to show retirement under the TERA 20122-2025. The Board determined he provided insufficient evidence to show the actions against him at the time were unjust or inequitable. The Board concluded that the applicant may have disagreed with the actions taken; however, all due process rights were afforded to him at the time the actions were taken. Therefore, the Board found insufficient evidence of an error or injustice which would warrant granting any of the requested relief. 15. MEDICAL REVIEW: a. Background: The applicant is requesting a reconsideration of numerous previous requests, to include an amendment to his DD Form 214 to show his type of separation as “retirement” and the authority and narrative reason for separation as “Temporary Early Retirement Authority (TERA) 2012-2024.” The applicant is asserting that TBI and PTSD mitigate his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * The applicant was appointed as a Reserve commissioned officer and entered active duty on 1 April 2005. * Applicant deployed to Iraq 24 March 2009 to 23 March 2010. Applicant deployed to Afghanistan 25 February 2011 through 1 December 2011. Applicant earned a Bronze Star. * Applicant was apprehended on 3 September 2013 for suspicion of violating curfew. He was later found not guilty of the curfew charge but guilty of attempting to flee the apprehension. He accepted nonjudicial punishment (NJP) on 15 October 2013. For this he received a GOMOR (15 October 2013). He contends the charges and findings are against regulation. * The above-mentioned information being filed in his restricted folder, he contests, led to him being pulled from the Fiscal Year 2015 MAJ promotion List and being separated from the Army. He was notified 23 January 2017 by HRC about his non- selection for promotion and of his involuntary separation from active duty. * Applicant was Honorably discharged 1 August 2017 under AR 600-8-24, Paragraph 5-9 with narrative reason of “non selection, Permanent Promotion.” * Applicant’s case was previously considered and denied 30 December 2020. c. Review of Available Records Including Medical: d. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his service record, separation documentation and DD Form 214, memorandums of support, Department of VA letter, and previous board findings. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant was Honorably discharged after being dropped from the promotion list and passed over for promotion, with him asserting that this was due to a GOMOR for which he raises several arguments against. He is requesting numerous changes to his record, and for this reconsideration, has also asserted that PTSD and TBI should mitigate his discharge. A review of his electronic health records found no history of a psychiatric diagnosis prior to or near the time of his misconduct. The only behavioral health related notes prior to his misconduct were for SPR (7 FEB 2011 – no psychological concerns or conditions noted, released without limitations) and in/out processing (22 May 2012; some indication of prior treatment but no diagnosis and released without limitations). An encounter was created but no data nor diagnosis was provided by Army Substance Abuse Program (ASA) 11 September 2013; this was likely a referral or assessment in response to his alcohol related incident that led to the GOMOR. Years after the incident, the applicant engaged in behavioral health care to address concerns around a possible history of TBI (9 January 2015) for an incident in 2010 and/or jump injuries in Airborne School in 2005. He noted in 2015 that he was experiencing some cognitive concerns (confusion, word finding issues, forgetfulness, difficultly concentrating) though acknowledged the symptoms worsened with his poor sleep. The doctor diagnosed him with insomnia and confusion and ordered additional testing. Further assessment on 22 January 2015 shows he had been having headaches and the symptoms listed above only for the last 6 months to 1 year ago. He also acknowledged anxiety for the past year. The provided found it unlikely that his symptoms were related to the previous concussions and attributed many of the symptoms to anxiety and/or possibly related to pain. The applicant denied diagnosis of PTSD. Per a note dated 19 February 2015, his MRI was within normal limits. The applicant was seen numerous times in the TBI clinic throughout 2015 and into 2016 to address anxiety, sleep, and other potential post concussive symptoms. The applicant was consistently released without limitations. He was reassessed 5 February 2017 to maintain his prescriptions. At that time, he was diagnosed with unspecified anxiety and an unspecified sleep disorder. He attended an evaluation for PTSD on 28 FEB 2017 and was diagnosed with an unspecified adjustment disorder. He continued with medication management through 2017 but did not appear to follow up with therapy past two appointments prior to his discharge from the Army. In summary, while he did engage in mental health care in active service, it was after his misconduct and there is no indication that the applicant was no longer fit for duty, that he was on a psychiatric profile, that he did not meet medical retention standards, nor that he was at the medical readiness decision point and needed a referral to the IDES process. f. The applicant provided a VA benefits letter which indicates he is 100% service connected, 70% for PTSD, with an effective date of 2 August 2017. Applicant’s EHR reflects that he began engaging in mental health care through the VA in 2018 though has had minimal engagement since. The applicant did not provide any additional civilian medical records. g. It is the opinion of this Agency Behavioral Health Advisor that there is insufficient evidence to support a referral to IDES process at this time. Based on the documentation available for review, there is no indication that the applicant was no longer fit for duty, that he was on a psychiatric profile, that he did not meet medical retention standards, nor that he was at the medical readiness decision point and needed a referral to the IDES process. In addition, there is minimal evidence that he was experiencing a mental health condition at the time of his misconduct, though there is sufficient evidence that he has since been diagnosed with a potentially mitigating condition. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends he was experiencing PTSD and TBI. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports that he was experiencing PTSD and TBI during his time in service. He has since been service connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mitigation due to PTSD and TBI. The applicant already has an Honorable discharge, and his condition(s) would not necessarily have impacted his not getting promoted; however, they may have played a role in the incident that led to his GOMOR. There is no current evidence that the applicant had PTSD, TBI symptoms, or any other mental health conditions during the time of his misconduct. Years after the incident the applicant engaged in care, with symptoms likely secondary to anxiety vs a TBI. However, he has since been service connected (70%) for PTSD. While it appears that these symptoms became problematic after his misconduct, per Liberal Consideration guidance, his contention alone would have been sufficient to warrant the Board’s consideration. Also, alcohol/substance use is an avoidance behavior that can be associated with the natural history and sequelae of PTSD, and this may have played a part in his misconduct. However, there is no nexus between running from the MP’s and PTSD or a TBI. In addition, there is insufficient evidence to support a disability separation or referral to IDES process at this time as all records support that he was fit for duty, met medical retention standards, and there’s no indication that he was at the medical readiness decision point. Applicant cites his VA disability rating as evidence of a potential error in discharge. However, VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a VA disability rating does not imply failure to meet Army retention standards at the time of service. A subsequent diagnosis of PTSD through the VA is not indicative of an injustice at the time of service. Furthermore, even an in-service diagnosis of PTSD, anxiety or insomnia is not automatically unfitting per AR 40-501 and would not automatically result in medical separation processing. BOARD DISCUSSION: 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 applicant's contentions, his military records, and regulatory guidance were carefully considered. The evidence of record confirms the applicant violated the UCMJ and subsequently accepted NJP. The imposing officer directed filing the Article 15 in the restricted folder of his OMPF. This is where the subject Article 15 is currently filed. His punishment consisted of a written reprimand by a general officer. This triggered a serios of events that potentially led to his non-selection for promotion and, separation. a. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander's function, and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through proper channels. He elected not to appeal his Article 15 to the next higher commander. b. His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the restricted section of his OMPF as directed by the imposing commander. There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust. In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. Additionally, his punishment consisted of a GOMOR. The GOMOR is currently filed in his OMPF. c. After considering all matters presented in defense, mitigation, and/or extenuation directed NJP in the form of a written reprimand. The applicant received a GOMOR for fleeing apprehension by the police. The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit upon the Army or is prejudicial to good order and discipline. The applicant was a commissioned officer in a position of trust and authority. The imposing general officer believed the applicant violated this trust by not setting the example for his Soldiers to emulate. The Board found no evidence that the reprimand is untrue or unjust. d. Because of the derogatory information in his file, his records were referred to a Department of the Army Promotion Review Board for reconsideration of his promotion status. The Secretary of the Army decided to remove him from the promotion list. The Board did not find an error or an injustice in this removal or a reason to remove the HRC Memorandum (Promotion Review Board Results), dated 7 December 2016, from the restricted folder of his AMHRR. e. The Board found no reason to reinstate his name to the Fiscal Year 2015 Major (MAJ) Promotion List with retroactive date of rank to MAJ and constructive service credit from the date of his separation. When the Secretary of the Army removed his name, he was no loner promotable. The applicant provided no concrete evidence that could be used to negate his unprofessional conduct, his DA Form 2627, and/or resultant GOMOR. Additionally, there is no evidence he was selected for promotion again. The Board determined he should not receive service credit for time he did not serve, due to his own misconduct. Additionally, since he was not promoted to major, his DD Form 214 correctly listed his grade as CPT. f. He was ultimately discharged from active duty for twice not being selected for promotion, with 12 years, 4 months, and 1 day of active service. He did not meet the criteria for early retirement because he did not have 15 years of active service on the date of discharge. Based on the preponderance of the evidence, the Board determined he does not qualify for retirement. g. Finally, the Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20200008055 on 30 December 2020. 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 (Army Board for Correction of Military Records) 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. 2. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial and the rules for courts-martial contained in the Manual for Courts-Martial. a. Paragraph 3-28 (Setting Aside and Restoration) states this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15, UCMJ. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the Article 15, UCMJ, itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15, UCMJ, or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. b. Paragraph 3-42 (Transfer of Punishments Wholly Set Aside or Changes of Status) states all DA Forms 2627 of commissioned officers and enlisted Soldiers filed in the AMHRR reflecting those punishments have been wholly set aside since 1 September 1979, will routinely be transferred to the restricted folder. The DA Form 2627 reflecting the original imposition of punishment, if filed in the military personnel records jacket, career management individual file, or unit nonjudicial punishment or unit personnel files will be destroyed. c. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) states enlisted Soldiers (sergeant and above) and commissioned officers may request the transfer of a record of nonjudicial punishment from the performance section of their AMHRR to the restricted section under the provisions of this regulation. To support the request, the person must submit substantive evidence that the intended purpose of Article 15, UCMJ, has been served and that transfer of the record is in the best interest of the Army. Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted. 3. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. Paragraph 5-9 states commissioned officers on the active duty list twice non-selected for promotion to the rank of captain, MAJ, or lieutenant colonel will be involuntarily released from or discharged unless they are, selectively continued; within 2 years of retirement (completes 18 or more years active Federal Service on their scheduled release date); retired; or a health professions officer. 4. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. a. Paragraph 8-1b states the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board. This authority has been delegated to the Secretary of the Army. The Secretary of the Army may also remove the name of a warrant officer who is on a promotion list. PRB are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. b. Paragraph 8-2 states Headquarters, Department of the Army, will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. An officer may be referred to a PRB for the following reasons (the list is not exclusive): * punishment under Article 15, UCMJ (whether filed in the restricted or performance folder of the AMHRR * a memorandum of reprimand placed in the AMHRR * adverse documentation filed in the AMHRR 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 April 2014, governs the composition of the Official Military Personnel File (OMPF) and states the performance folder is used for filing performance, commendatory, and disciplinary data. It also includes the service, restricted, and deployment/mobilization folders. 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. 6. Army Regulation 600-37 (Unfavorable Information) 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. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 7. Army Regulation 635-8 (Separation Processing and Documents), provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. It establishes standardized policy for preparing and distributing the DD Form 214. The specific instructions state: a. in block 23 (Type of Separation), enter the appropriate term for officers (e.g., discharge, release from active duty, retirement); b. in block 26 (Separation Code), enter the proper separation program designator, representing the reason for separation from Army Regulation 635-5-1 (Separation Program Designator Codes); and c. in block 8 (Narrative Reason for Separation), enter the reason for separation based on regulatory or other authority. 8. Army Regulation 635-5-1 (Separation Program Designator Codes) states separation codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty. The separation code "JGB" is the correct code for officers separating under Army Regulation 600-8-24, paragraph 5-9, for "non-selection, permanent promotion." 9. Department of Defense Instruction 1332.46 (Temporary Early Retirement Authority (TERA) for Service Members), 21 December 2018, establishes policy, assigns responsibilities, and provides procedures for the administration of TERA as authorized by section 4403(i) of Public Law 102-484, the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1993, as amended by section 504 of Public Law 112-81, the NDAA for FY12, and section 508 of Public Law 114-328, the NDAA for FY17. a. TERA provides the Department of Defense with a force management tool that can be used for force shaping through calendar year 2025. TERA is not an entitlement. TERA should be used to retire service members who are excess to service short-term and long-term needs and who, absent the availability of TERA, would have been expected to pursue and qualify for a 20-year retirement. b. To be eligible for early retirement, a service member must volunteer and: (1) be currently serving on active duty or full-time National Guard; (2) complete 15 but less than 20 years of service upon the effective date of retirement; and (3) meet grade, skill, years of service, and other eligibility criteria as established by the Secretary of the Military Department concerned. 10. Manual for Courts-Martial, United States: a. Chapter III (Initiation of Charges; Apprehension; Pretrial Restraint; Related Matters), Rule 302 (Apprehension)(c) (Grounds for Apprehension), states a person subject to the UCMJ or trial thereunder may be apprehended for an offense triable by court-martial upon probable cause to apprehend. Probable cause to apprehend exists when there are reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended committed or is committing. Persons authorized to apprehend may also apprehend persons subject to the UCMJ who take part in quarrels, frays, or disorders, wherever they occur. "Reasonable grounds" means that there must be the kind of reliable information that a reasonable, prudent person would rely on which makes it more likely than not that something is true. A mere suspicion is not enough but proof which would support a conviction is not necessary. b. Chapter 47 (UCMJ), subchapter II (Apprehension and Restraint), section 807(b) (Article 7 Apprehension), states any person authorized under regulations governing the Armed Forces to apprehend persons subject to this chapter or to trail thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it. 11. Title 38, U.S. Code, section 1110 (General – Basic Entitlement), provides that for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 12. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement), provides that for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 13. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service 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 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) AR20220009915 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1