IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230003174 APPLICANT REQUESTS: * amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 25 January 2022, to remove notation of lost time * amendment of his DD Form 214, for the period ending 25 January 2022, to correct the calculation of his “net active service this period” * amendment of his DD Form 214, for the period ending 25 January 2022, to change the narrative reason for separation from “Unacceptable Conduct” to “Secretarial Authority” * amend his record to reflect retirement as of 25 January 2022 * refer him to a medical evaluation board (MEB) 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) * Brief in Support of Applicant for Records Correction (not dated) * Enclosure 1 – * DD Form 4 (Enlistment/Reenlistment Document), 22 June 1998 * DA Form 3286-59 (Statement for Enlistment, U.S. Army Enlistment Program, U.S. Army Delay Enlistment Program), 18 July 1997 * DA Form 3286-67 (Statement of Understanding), 22 June 1998 * DA Form 3286-63 (Statement for Enlistment, U.S. Army Training Enlistment Program), 22 June 1998 * USAREC Form 1127 (Supplement to DA Form 3286-67, Statement for Enlistment (or Appointment) Army Policy), 22 June 1998 * Enclosure 2 – DD Form 214, for the period ending 27 July 2000 * Enclosure 3 – * DD Form 4, 11 July 2000 * DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract), 11 July 2000 * DA Form 597-3A-R (Addendum to ROTC Scholarship Cadet Contract), 23 August 2000 * Enclosure 4 – * DA Form 71 (Oath of Office-Military Personnel), 15 May 2004 * U.S. Army ROTC Instructor Group (Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, Sections 12201-122203, 2104, 2106, and 2107), 15 May 2004 * Enclosure 5 – DD Form 214, for the period ending 25 January 2022 (partially obstructed) * Enclosure 6 – * Headquarters, 101st Airborne Division (Air Assault), Forward Operating Base Speicher, Permanent Orders 020-019D, 20 January 2006 * Bronze Star Medal Certificate, for the period covering 20 September 2005 through 18 September 2006 * Enclosure 7 – * Bronze Star Medal Certificate, 28 October 2008 * Bronze Star Medal Certificate, 31 January 2009 * Enclosure 8 – * Bronze Star Medal Certificate, 23 February 2011 * NATO Medal Certificate, for the period covering 1 May 2010 through 1 May 2011 * Enclosure 9 – Medical Record, 12 April 11 * Enclosure 10 – University Transcript, 26 September 2014 * Enclosure 11 – Headquarters, U.S. Army Human Resources Command (HRC), Orders 230-019, 18 August 2014 * Enclosure 12 – Medical Record (Administrative Examinations), 31 March 2017 * Enclosure 13 – Medical Record (Substance Use Disorder), 31 March 2017 * Enclosure 14 – Medical Record, 26 April 2017 * Enclosure 15 – DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 25 September 2017 * Enclosure 16 – Law Enforcement Report (LER) – Final (not dated) * Enclosure 17 – DA Form 2627, 14 February 2018 * Enclosure 18 – U.S. Africa Command (USAFRICOM) Memorandum (General Officer of Reprimand (GOMOR)), 26 February 2018 * Enclosure 19 – Medical Record, 12 September 2018 * Enclosure 20 – Headquarters, U.S. Army Garrison Stuttgart, Orders 039-02, 8 February 2019 * Enclosure 21 – DA Form 31 (Request and Authority for Leave), 10 March 2019 * Enclosure 22 – Headquarters, U.S. Army Medical Department Activity Memorandum (Referral to Soldier Recovery Unit), 1 September 2021 * Enclosure 23 – USAFRICOM Memorandum (Orders to Return to Headquarters, USAFRICOM for (Applicant)), 1 August 2021 * Enclosure 24 – USAFRICOM Memorandum (Orders to Return to Headquarters, USAFRICOM for (Applicant)), 20 September 2021 * Enclosure 25 – Headquarters Carlisle Barracks, Orders 006-0001, 6 January 2022 * Enclosure 26 – Officer Record Brief, 26 January 2022 * Enclosure 27 – * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 357-223, 22 December 2004 * Headquarters, U.S. Army Infantry Center, Permanent Orders 205-3010, 24 July 2007 * Headquarters, 101st Airborne Division and Fort Campbell, Orders 76-011, 16 March 2012 FACTS: 1. The applicant defers to counsel. (Note: The application package does not contain a power of attorney or an affidavit authorizing counsel to pursue action on the applicant's behalf.) 2. In the brief in support of applicant for records correction, counsel for the applicant states: a. Administrative separation is legally insufficient. The applicant’s administrative separation is legal insufficient because there is no evidence to demonstrate the applicant was properly notified of elimination proceedings and advised of his rights nor is there any documentation to demonstrate that a board of inquiry (BOI) was conducted in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges). b. Lost time. The applicant’s DD Form 214, for the period ending, 25 January 2022, reflects he completed 15 years, 2 months, and 13 days of net active service this period. However, the applicant’s net active service this period should be 17 years and 8 months. The applicant neither deserted nor was he absent without leave or confined at any time throughout his service history. While it is clear that the applicant suffered from alcohol use disorder, he was not unable to perform his duties during the “dates of time lost during this period” as reflected on the DD Form 214 (30 March 2019 through 21 September 2021 and 6-11 October 2021). (1) During the period 30 March 2019 through 21 September 2021, the applicant was on approved administrative leave. He was on approved leave awaiting the processing of his administrative separation and discharge from the Army. (2) During the period 6-11 October 2021, the applicant was present for duty at Stuttgart, Germany and performing his duties. There is no evidence to suggest the applicant was unable to perform his duties during this timeframe. c. Retirement. Since the applicant’s correct net active time in service totals 19 years, 9 months, and 6 day, which includes his prior active service, the applicant should have been permitted to retire in lieu of elimination. Active duty commissioned officers who have 20 years or more of active federal service are eligible to retire. Because the applicant was discharged nearly 3 years after the initiation of elimination proceedings and the applicant had then reached more than 19 years of active federal service, he should have been given the opportunity to apply for retirement in lieu of elimination. d. MEB. The applicant’s military record should be corrected and his medical records referred to an MEB to evaluate his then-diagnosed medical conditions to assess his fitness for duty at the time of his separation. An assessment of the applicant’s fitness for duty under the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) was not completed despite the fact that only substandard performance resulting in the applicant’s separation – namely, receiving two Article 15, UCMJ, for being passed out due to intoxication – was not only related to, but a direct result of both his physical and mental health conditions for which he was actively seeking treatment. Therefore, the commander’s failure to properly refer the applicant for assessment of his fitness for duty constitutes a material error. e. Correction of DD Form 214 narrative reason. The only basis for the applicant’s administrative separate was his physical and mental health conditions rather than independent instances of misconduct. The applicant’s service history reflects no misconduct and his honorable characterization of service is an accurate reflects of his service history. Therefore, the narrative reason contained on his DD Form 214 is erroneous and misrepresents the applicant’s honorable service. f. Punishing service members for struggling with addition disorders rooted in post- traumatic stress disorder (PTSD) and combat-related trauma is manifestly unjust and does not reflect the care and appreciation Veterans deserve. The applicant has a long medical history of anxiety, PTSD, and alcohol use disorder, all of which developed after the applicant’s third deployment. Since the applicant’s medical and mental conditions were the sole basis of his separation, the applicant’s discharge was not only erroneous but it resulted in punishment that is disproportionately sever to the conduct it aimed to address. 3. The applicant enlisted in the Regular Army on 22 June 1998. 4. On 27 July 2000, the applicant was honorably discharged from active duty to enter an officer training program. His DD Form 214 shows he completed 2 years, 1 month, and 6 days of active service. 5. On 11 July 2000, the applicant enlisted in the U.S. Army Reserve as an ROTC cadet. 6. On 15 May 2004, the applicant was appointed as a Reserve commissioned officer in the military police corps and executed an oath of office. 7. On 12 April 2011, the applicant was seen by a medical professional for reports of anxiety and worry. He would redeploy within a few weeks and reported that thoughts are now consumed with anxiety and things at home. This would be his third deployment. He was released without limitations. 8. On 31 March 2017, the applicant was seen by a medical professional as a follow up after an emergency room visit in which he was found to be intoxicated from alcohol. He admitted to drinking a bottle of alcohol that he had in his truck. He made a poor excuse for the reason he chose to drink that did not pass the common sense test. He stated he had been sick so he decided to drink some alcohol. He stated he had an appointment with the Army Substance Abuse Program. He was released without limitations. 9. On 31 March 2017, the applicant was seen by a medical professional for alcohol dependence, uncomplicated. He was concerned about his alcohol usage and decided on his own to come to the clinic. He was diagnosed with severe alcohol use disorder. After consultation with the applicant’s battalion commander immediately after completing assessment, he was referred to residential care and a bed was secured the same day. 10. On 26 April 2017, the applicant was discharged from residential care and transported back to Fort Polk, LA by his battalion commander. He was seen by behavioral health upon his arrival and additionally had a follow up appointment. The applicant was directed to follow up with behavior health and the Army Substance Abuse Program on an outpatient basis. 11. On 14 September 2017, the applicant accepted nonjudicial punishment for one specification of Article 111 (Drunken or Reckless Operation of Vehicle, Aircraft, or Vessel), UMCJ, for physically controlling a vehicle while his alcohol concentration in his blood exceeded .10 grams of alcohol per 210 liters of breath as determined by chemical analysis. His punishment included forfeiture of $500.00 pay per month for 1 month. The imposing commander directed the DA Form 2627 be file din the performance section of his Official Military Personnel File. The applicant did not appeal. 12. LER – Final, not dated, shows that on 1 December 2017, the applicant was found passed out in the latrine. An odor of an alcoholic beverage was emitting from him. He was escorted to the military police station and administered a breath analysis which resulted in a reading of 0.297% blood alcohol content. The applicant was transported and admitted to the hospital for a blood test and treatment. Later, the applicant invoked his rights, was further processed, and released to his unit. A staff judge advocate opined there was probable cause to believe the offense of drunk on duty occurred by the applicant. 13. USAFRICOM memorandum (Request Blood Alcohol Content for (Applicant)), 1 December 2017, shows the USAFRICOM Headquarters Commandant requested a blood alcohol content test be administered for the applicant, who was currently enrolled in the substance abuse program. The applicant was found sitting on the floor in a bathroom stall within the J34 work space. The subsequent breath test recorded a 0.297% blood alcohol content. 14. On 14 February 2018, the applicant accepted nonjudicial punishment for one specification of Article 112 (Drunk on Duty), UCMJ, for being drunk on duty as a commissioned officer. His punishment included forfeiture of $500.00 pay and written reprimand. The imposing commander directed the DA Form 2627 be filed in the performance section of his Official Military Personnel File. The applicant did not appeal. 15. USAFRICOM memorandum (GOMOR), 26 February 2018, shows the applicant was reprimanded for conduct unbecoming an officer. On 1 December 2017, during his regular military duty hours, he was found by two co-workers, in uniform, passed out in a stall in a latrine that was near his office, at his duty location on Kelley Barracks, Germany. It took loud yelling by his co-workers to rouse him. When aroused, his co- workers observed that his speech was slurred and he stumbled as he attempted to stand. He was taken to the military police station and administered a breath test which recorded a 0.297% blood alcohol content. The reprimand was imposed as part of the punishments adjudged at the Article 15, UCMJ. 16. Headquarters, 21st Theater Sustainment Command (TSC) memorandum (Initiation of Elimination), 17 May 2018, shows the applicant was notified he was to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2b (Misconduct, Moral or Professional Dereliction, or In the Interests of National Security) and 4-2c (Derogatory Information) because of misconduct, moral, or professional dereliction, and derogatory information filed in his Army Miliary Human Resources Record (AMHRR). It further shows: a. His action is based on the following specific reasons for elimination: (1) Alcohol related misconduct that occurred on 19 August 2017 which resulted in a general officer Article 15 filed in his AMHRR. (2) On or about 1 December 2017, he was found drunk while on duty. (3) Conduct unbecoming an officer as indicated by the above-referenced items. b. The applicant was advised of his options in response to the initiation of elimination. c. The applicant acknowledge receipt of the notification on 22 May 2018. 17. Trial Defense Service memorandum ((Applicant’s) Election of Rights), 6 July 2018, shows the applicant’s current trial defense counsel notified counsel that the applicant requested a field BOI. The applicant understood his multiple options, to include (1) requesting a discharge, (2) a resignation in lieu of a separation board, (3) a retirement in lieu of a separation board, (4) a rebuttal contesting the elimination decision, and (5) a field BOI. 18. USAFRICOM memorandum (Request for Discharge in Lieu of Elimination Proceedings), 9 August 2018, shows the applicant, having been informed that he is being considered for elimination, requested discharge form the Army under the provisions of Army Regulation 600-8-24, chapter 4 (Eliminations), in lieu of further elimination proceedings. If his request for discharge is accepted, he understood he would be furnished an honorable characterization of service as determined by Headquarters, Department of the Army. 19. USAFRICOM memorandums (Request for Resignation in Lieu of Elimination, (Applicant)), 27 August 2018, shows the Headquarters Commandant and ASE commander both recommended approval of the applicant’s request for resignation in lieu of elimination. 20. On 12 September 2018, the applicant was seen by a medical professional. He requested a refill of his medication used to treat his PTSD. 21. 21st TSC memorandum (Appointment of a BOI, (Applicant)), 10 December 2018, shows a BOI was appointed in accordance with Army Regulation 600-8-24 and Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to establish and record the facts of the applicant’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service. 22. USAFRICOM memorandum (Notification to Appear Before a BOI Under Army Regulation 600-8-24), 14 December 2018, shows the applicant was notified that a BOI would convene to determine whether he should be discharged for misconduct, moral or professional dereliction, or in the interests of national security before the expiration of his term of service. The applicant acknowledge receipt of his notification to appear before a BOI on 20 December 2018. 23. USAFRICOM memorandum (Notification to Appear Before a BOI Under Army Regulation 600-8-24), 10 January 2019, shows the applicant was notified that a BOI would convene to determine whether he should be discharged for misconduct, moral or professional dereliction, or in the interests of national security before the expiration of his term of service. His original BOI was delayed. The applicant acknowledge receipt of his notification to appear before a BOI on 15 January 2019. 24. USAFRICOM memorandum ((Applicant), BOI Characterization of Service Recommendation), 1 February 2019, shows the ASE commander recommended the applicant receive an honorable characterization of service. 25. The findings and recommendations worksheet, 4 February 2019, shows: a. Findings. After careful consideration of the evidence, the board found - (1) The allegation of misconduct, resulting in a general officer Article 15, UCMJ, 14 September 2017, in the notification of proposed separation is supported by a preponderance of the evidence. (2) The allegation or derogatory activity resulting in the general officer Article 15, UCMJ, 14 September 2017, filed in his AMHRR on 5 October 2017, in the notification of proposed separation, is supported by a preponderance of the evidence. (3) The allegation of conduct unbecoming an officer, as indicated in the general officer Article 15, UCMJ, 5 October 017, is supported by a preponderance of the evidence. (4) The allegation of misconduct, resulting in a general officer Article 15, UCMJ, 7 February 2018, in the notification of proposed separation, is supported by a preponderance of the evidence. (5) The allegation or derogatory activity resulting in a general officer Article 15, UCMJ, 7 February 2018, filed in his AMHRR on 26 February 2018, in the notification of proposed separation is supported by a preponderance of the evidence. (6) The allegation of conduct unbecoming an officer, as indicated in the general officer Article 15, UCMJ, 14 September 2017 and 7 February 2018, is supported by a preponderance of the evidence. b. Recommendations. In view of the above findings, the board recommends the applicant be eliminated from the U.S. Army with an honorable characterization of service. 26. Headquarters, U.S. Army Garrison Stuttgart, Orders 039-02, 8 February 2019, shows the applicant’s dependents were given authorization for early return to the continental U.S. 27. DA Form 31, 10 March 2019, shows the applicant was placed on excess leave awaiting administrative discharge beginning 30 March 2019 to a date to be determined. The entries for the applicant’s departure and return are void. 28. 21st TSC memorandum (Officer Elimination Action, (Applicant)), 12 March 2019, shows the commanding general recommended to HRC that the applicant be discharged with an honorable characterization of service. 29. USAFRICOM memorandum (Acknowledgement of Receipt of BOI Recommendation of Elimination), 28 April 2019, shows the applicant acknowledged receipt of the BOI report which recommended his elimination. He elected not to submit an appellate brief and statement to the General Officer Show Cause Authority. 30. 21st TSC memorandum (Direct Reconvening of the BOI, (Applicant)), 30 July 2019, shows the 21st TSC commanding general directed a BOI to reconvene to correct its substantial defect for failure to make findings and recommendation required by Army Regulation 600-8-24, paragraph 4-15(b) (Findings and Recommendations). The case was returned to the Board. The board will reconvene in accordance with Army Regulation 600-8-24 and Army Regulation 15-6 applicable to formal proceedings with respondents. 31. USAFRICOM memorandum (Acknowledgement of Notification to Appear Before a Reconvened BOI Under Army Regulation 600-8-24), 7 October 2019, shows the applicant acknowledged that his BOI would be reconvened on 9 October 2019. He waived personal appearance before the reconvened BOI. He requested consulting counsel. 32. An email ((Applicant) Waiver of Appearance Approval), 8 October 2019, shows the applicant’s waiver of appearance was approved. 33. The findings and recommendations, 9 October 2019, shows a BOI was convened on 4 February 2019 and determined that the applicant should be eliminated with an honorable characterization of service. The board reconvened to provide the factual predicate supporting their findings and the recommendation that the applicant should be eliminated with an honorable characterization of service. The reconvened board, in a closed session and upon secret ballot with a majority vote taken, has made the following findings and recommendations: a. Findings. The board, having carefully reconsidered the evidence before it finds: (1) The allegation of misconduct, resulting in the general officer Article 15, UCMJ, which was adjudicated and dated 5 October 2017 that: (a) On 19 August 2017, the applicant physically controlled a vehicle while the alcohol concentration in his blood exceeded .10 grams of alcohol per 210 liters of breath, as determined by chemical analysis. As a commissioned officer and former company commander in the U.S. Army, the applicant was fully aware that physically controlling a vehicle while under the influence of alcohol is punishable misconduct. The board found that the allegation of misconduct is supported by a preponderance of the evidence. (b) The general officer Article 15, UCMJ, resulting from the 19 August 2017 driving under the influence adjudicated and dated 5 October 2017 is filed in the applicant’s AMHRR is supported by a preponderance of the evidence. (2) The allegation of misconduct, resulting in the general officer Article 15, UCMJ, which was adjudicated and dated 26 February 2018 that: (a) On 1 December 2017, the applicant was found drunk while on duty as a commissioned officer in the U.S. Army. As a commissioned officer and former company commander in the U.S. Army, the applicant was fully aware that being on duty while under the influence of alcohol is punishable misconduct. The board finds that the allegation of misconduct is supported by a preponderance of the evidence. (b) The general officer Article 15, UCMJ, resulting from the 1 December 2017 drunk on duty, which was adjudicated and dated 26 February 2018 is filed in the applicant’s AMHRR is supported by a preponderance of the evidence. (c) That the applicant’s conduct listed in the above mentioned general officer Article 15s, UCMJ, was unbecoming of an officer and gentleman is supported by a preponderance of the evidence. b. Recommendations. In view of the above findings, the reconvened board recommends that the applicant be eliminated from the U.S. Army with an honorable characterization of service. 34. An email ((Applicant) – Waiver of Matters), 2 June 2020, shows that counsel for the applicant confirmed that the applicant waived the submittal of matters following the rehearing of his administrative separation board in October 2019. They stand by the case they made during his initial hearing in 2018. 35. 21st TSC memorandum (Officer Elimination Action, (Applicant)), 9 July 2020, shows that applicant’s commanding general recommended to HRC that he be discharged with an honorable characterization of service. 36. On 10 May 2021, the applicant completed DD Form 2807-1 (Report of Medical History). The applicant indicated the purpose of his examination was for retirement. The applicant listed a myriad of medical “issues,” including his use of alcohol and seizures related to alcohol overdose and detoxification. 37. On 10 May 2021, a medical professional completed DD Form 2808 (Report of Medical Examination). The purpose of examination was for separation, not retirement. The medical professional indicated the applicant is not medically qualified due to unresolved behavioral issues, health issues, and seizure activity. He recommended the applicant be referred to neurology and behavioral health. His medical diagnoses were: * PTSD * anxiety * depression * ethanol dependance * hearing loss * tinnitus * lower back pain * left shoulder pain * headache 38. On 10 May 2021, a behavioral health provider completed DA Form 3822 (Report of Mental Status Evaluation). The purpose of the mental status evaluation was for officer elimination. DA Form 3822 further shows: a. The behavioral health provided stated the applicant had no duty limitations due to behavioral health reasons and the applicant currently met behavioral health medical retention standards. b. The applicant tested positive for PTSD, cannabis use disorder, alcohol use disorder, in sustained remission. c. The applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. d. The applicant’s behavior health condition was likely not a mitigating factor in the alleged behavior leading to administrative separation. e. The effects of PTSD and traumatic brain injury did not likely constitute matters in extenuation that related to the basis for separation. f. The applicant met diagnostic criteria for PTSD, alcohol use disorder, severe, in sustained remission and cannabis use disorder. Based on the applicant’s self-report of cannabis use, a Substance Use Disorder Clinical Care referral is required. Recommend that the applicant reengage with behavioral health for medication management until he separates from the Army. Although the applicant has a behavioral health condition, he continues to meet medical retention standards and does not require a MEB. This opinion is based solely on the clinical judgment of the provider and does not constitute a forensic legal opinion as it pertains to criminal responsibility, state of mind at the time of the alleged behavior that is the basis for the administrative separation, competency, or other determinations typically required by courts. 39. USAFRICOM memorandum (Order to Return to Headquarters, USAFRICOM for (Applicant)), 1 August 2021, shows the Army Service Element (ASE) commanding officer rendered a memorandum for record regarding his conversation with the applicant. It shows that on 30 July 2021, he contacted the applicant on his personal cell phone and ordered his return to Headquarters, USAFRICOM, in not later than 30 days. He informed the applicant that the 30-day suspense was intended to afford him the time needed to conduct any coordination necessary for family care. The applicant was directed to return by 29 August 2021. Violation would constitute a violation of Article 90 (Assaulting or Willfully Disobeying Superior Commissioned Officer), UMCJ. 40. Headquarters, U.S. Army Medical Department Activity memorandum (Referral to Soldier Recovery Unit), 1 September 2021, shows a medical professional requested the applicant be considered for the Soldier Recovery unit for facilitation of access to care. In July 2021, the applicant was not enrolled in Substance Use Disorder Clinical Care treatment as the command was unable to provide necessary support for mandatory enrollment. The level of complexity of his treatment required additional resources to ensure facilitation of access to care. 41. USAFRICOM memorandum (Order to Return to Headquarters, USAFRICOM for (Applicant)), 20 September 2021, shows the ASE commanding officer rendered a memorandum for record regarding his conversation with the applicant. It shows he directed the applicant to return to USAFRICOM. The applicant was on administrative leave status. The applicant was scheduled to begin return travel on 21 September 2021 in order to arrive on 22 September 2021. 42. An email (Germany), 5 October 2021, shows the applicant notified Colonel (COL) of the following: It has become evident that mine and my family's interests are not inline with the government's. My mental and physical health have rapidly eroded over the past two weeks with the continued uncertainty of my future. I have given much over the past two weeks and have accomplished nothing. Debt remittance has become a way to keep me in Germany and not a means to a solution. For my personal safety and the health of my family, I have decided it best to leave Germany and go back to my established support and healthcare team. I am in transit right now back to the United States. 43. On 6 October 2021, the applicant’s duty status was changed from “absent unknown” to “absent without leave,” effective 1100, 6 October 2021. 44. An email ((Applicant) Returned to Military Control), 13 October 2021, shows the applicant returned to Stuttgart, Germany on the afternoon of 12 October 2021. (Note: No DA Form 4187 (Personnel Action) is available which changes the applicant duty status.) 45. Headquarters, USAFRICOM memorandum (Request for Voluntary Retirement in Lieu of Elimination for (Applicant)), 14 October 2021, shows the applicant requested to be released form active duty and assignment on 30 April 2022 and placed on the retired list 1 May 2022 or as soon thereafter as practical. He would have completed over 20 years of active serve on the requested retirement date. His request is submitted in lieu of elimination proceedings. 46. Headquarters, USAFRICOM memorandum (GOMOR), 22 October 2021, shows the applicant was reprimanded for absenting himself without authority from his unit from 5 October 2021 until 12 October 2021. On 5 October 2021, he emailed COL and informed COL that he and his family's interests are not in line with the Government's. He then wrote to COL that for his personal safety and health of his family he decided it best to leave Germany and go back to his established support and healthcare team and that he was already in transit back to the U.S. This action was done without authority or justification and resulted in several follow-on actions that detracted from the command's day-to-day operations and good order and discipline. Furthermore, he failed to use available medical, psychological, and financial resources within the Stuttgart Garrison community. 47. Headquarters, USAFRICOM memorandum (Acknowledgement of Receipt of Reprimand), 22 October 2021, shows the applicant acknowledged receipt of his GOMOR, 22 October 2021. He elected not to submit any matters, but annotated directed on the acknowledgement “I did not have clear mind, however I am guilty and wish to take reprimand.” 48. Headquarters, USAFRICOM memorandum (ASE Commander Recommendation on Filing Determination), 26 October 2021, shows the ASE commander recommended that applicant’s GOMOR be permanently filed in the applicant’s AMHRR. 49. Headquarters, USAFRICOM memorandum (Filing Determination on Reprimand), 26 October 2021, shows the imposing commander, after carefully considering the circumstances of the misconduct, all matters submitted by the applicant in defense, extenuation, or mitigation, along with recommendation of his subordinate commander, directed the applicant’s GOMOR, 22 October 2021, be placed permanently in his AMHRR. 50. Army Review Boards Agency memorandum (Discharge in Lieu of Elimination Case), 22 December 2021, shows the applicant’s request for discharge in lieu of elimination was approved. The applicant would be discharged from the U.S. Army with an honorable characterization of service. The elimination was based on misconduct and moral or professional dereliction. 51. On 25 January 2022, the applicant was honorably discharged from active duty for unacceptable conduct. His DD Form 214 shows in: * item 12c (Net Active Service This Period) – 15 years, 2 months, and 13 days * item 12d (Total Prior Active Service) – 2 years, 1 month, 6 days * item 28 (Narrative Reason for Separation) – “Unacceptable Conduct) * item 29 (Dates of Time Lost During This Period) – “Under 10 USC 972: (Members: effect of time lost)” * 30 March 2019 through 21 September 2021 * 6-11 October 2021 52. The applicant submitted the following documents not discussed above from his service record for consideration: * DA Form 3286-59, 18 July 1997 * DA Form 3286-67, 22 June 1998 * DA Form 3286-63, 22 June 1998 * USAREC Form 1127, 22 June 1998 * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Order 357-223, 22 December 2004 * Headquarters, 101st Airborne Division (Air Assault), Permanent Orders 020- 019D, 20 January 2006 * Bronze Star Medal Certificate, for the period covering 20 September 2005 through 18 September 2006 * Headquarters, U.S. Army Infantry Center, Permanent Orders 205-3010, 24 July 2007 * Bronze Star Medal Certificate, 28 October 2008 * Bronze Star Medal Certificate, 31 January 2009 * Bronze Star Medal Certificate, 23 February 2011 * NATO Medal Certificate, for the period covering 1 May 2010 through 1 May 2011 * Headquarters, 101st Airborne Division and Fort Campbell, Orders 76-011, 16 March 2012 * Headquarters, HRC, Order 230-019, 18 August 2014 * University Transcript, 26 September 2014 53. HRC memorandum (Army Board for Correction of Military Record of Proceedings for (Applicant), AR20230003173), 31 May 2023, shows an advisory opinion from HRC in regards to the applicant’s lost time. HRC states the applicant’s lost time on his DD Form 214, for the period ending 25 January 2022 for 30 March 2019 to 21 September 2021 and 6-11 October 2021 cannot be removed unless he has proof showing he did not have lost time. Without proof of lost time being incorrect, item 12c is correct as issued. The Army Service Center cannot make an opinion on items 25 (Separation Authority), 26 (Separation Code), 27 (Reentry Code), and 28. 54. A letter, 19 June 2023, from counsel for the applicant, in rebuttal to the advisory opinion from HRC shows the advisory opinion from HRC only addresses the applicant’s request for a records correction, specifically correction of his lost time. Along with his written explanation of errors to the calculation of lost time submitted with his application, the applicant submitted documentation demonstration that he was on approved administrative leave during the dates reflected as lost time. Therefore, the applicant has submitted the requisite proof showing he did not have lost time. 55. MEDICAL REVIEW: a. Background: A post-board review case requesting a BH specialist review the case and decide whether or not the applicant’s BH issues merit a referral to IDES. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), his DD Form 214, documents from his service record and separation, as well as his counselor’s statement, medical documents, and all other enclosed supporting documents. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. Opinion: d. It is the opinion of this Agency Behavioral Health Advisor that there is insufficient evidence to support a referral to DES for a mental health condition. The burden of proof is on the applicant to provide contemporaneous evidence that he should have been medically retired or discharged during his time in service. The applicant and his counsel have not done so. In short, the applicant’s medical record does indicate a diagnosis of PTSD, however his records consistently document the applicant as fit for duty and without duty limitations. There is no indication in his record that he ever was on a temporary or permanent profile for psychiatric concerns, that he fell below medical retention standards, nor that he was at the medical readiness decision point. Please see below for further details. e. Per the applicant’s electronic health record, he was actively engaged in substance use treatment (through SUDCC/ASAP) and behavioral health during his time in service. He has been diagnosed with alcohol dependence (2017), alcohol dependence, in remission (2018), cannabis abuse, and PTSD (2018). His records reflect he first self- referred to ASAP in 2003 but did not enroll. He first noted anxiety and difficulty with sleep in 2011, and this appeared to be related to psychosocial stressors and returning from deployment (recently divorced, stressors back home). His substance use treatment began in 2017 after an alcohol related incident. He began addressing PTSD/trauma in 2018. Throughout his time in the Army, he engaged in residential treatment, outpatient individual SUDCC treatment, group SUDCC treatment, psychiatric care to include medication to inhibit alcohol use, and therapy. Consistently, throughout all of his episodes of care for his concerns (to include his last treatment appointments), he was found fit for duty, not falling below medical retention standards, and was released without limitations. It was also evident that when the applicant was sober and actively engaged in care, his psychiatric symptoms reduced greatly. It is also important to note that his records reflect that he had concerns with alcohol use that predated the Army, as well as his deployments. It appears that for many years, alcohol was the way that he coped with difficulties (emotional, social, stress, etc.). While his experiencing of anxiety and trauma did not help his alcohol use disorder, it does not appear that his trauma and military experiences predate his alcohol use problem. f. The applicant’s counsel stated in his brief that the applicant should have been assessed for his fitness for duty under AR 40-501. The applicant was, as he was command directed to be evaluated. On 21 May 2021, he completed a mental status exam (MSE) as part of his officer elimination/separation process. The assessing provider indicated the applicant had no duty limitations due to behavioral health reasons and the applicant currently met behavioral health medical retention standards. His diagnoses were listed as PTSD, cannabis use disorder, and alcohol use disorder, in sustain remission. Finding also indicated the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong, the applicant’s behavior health condition was likely not a mitigating factor in the alleged behavior leading to administrative separation, and the effects of PTSD and traumatic brain injury did not likely constitute matters in extenuation that related to the basis for separation. Due to his ongoing cannabis use he was referred to SUDCC and he was encouraged to reengage with behavioral health for medication management. Of important note, it was found that: …although the applicant has a behavioral health condition, he continues to meet medical retention standards per AR 40-501 and does not require a Medical Evaluation Board. This opinion is based solely on the clinical judgment of the provider and does not constitute a forensic legal opinion as it pertains to criminal responsibility, state of mind at the time of the alleged behavior that is the basis for the administrative separation, competency, or other determinations typically required by courts. g. Of note, from a Liberal Consideration standpoint, if the applicant still had misconduct to mitigate and/or hadn’t already received an honorable discharge, his mental health diagnoses would likely have allowed for mitigating of his substance use related to misconduct, given the nexus between self-medication and avoidance through substance use to PTSD, depression and anxiety. h. Since his discharge, he has engaged in care through the VA and maintains the same diagnoses. The applicant has been service connected (70%) for PTSD. That said, 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 post-discharge VA disability rating does not imply failure to meet Army retention standards at the time of service, nor is it indicative of an injustice at the time of service. Furthermore, even an in-service diagnosis of PTSD is not automatically unfitting per AR 40-501, hence why he was not automatically referred for medical separation processing. In addition, substance use disorders are not med boardable conditions and therefore was not considered for this opine. i. In summary, it is evident the applicant’s primary mental health concern during his time in service was his substance use disorders (primarily alcohol) and the significant harm it caused him psychosocially (work, relationships, etc.) as well as physically (hospitalizations, seizures, likely impacting memory and cognition). While PTSD, a potentially boardable condition, was diagnosed and treated, he never fell below medical retention standards, he was never on a permanent profile, and he was never at the medical readiness decision point. Hence, he would not be an appropriate referral to the DES now, nor does there appear to be an error or injustice that he was not sent during his time in service. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered through counsel the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review through counsel of the applicant’s petition, available military records, medical review and the human resources command advisory opinion, the Board concurred with the advising official finding the applicant provided insufficient proof that he did not have lost time. The Board further agreed with the medical opine finding insufficient evidence to support a referral to DES for a mental health condition. Evidence in the record show the applicant had no duty restrictions due to behavioral health reasons and the applicant currently met behavioral health medical retention standards. It was noted by the Board that the burden of proof is on the applicant to provide contemporaneous evidence that he should have been medically retired or discharged during his time in service. The applicant and his counsel have not done so. In short, the applicant’s medical record does indicate a diagnosis of PTSD, however his records consistently document the applicant as fit for duty and without duty limitations. 2. The Board found the applicant’s record is absent any DA Form 31 or leave and earning statement (LES) to validate that the applicant and his counsel’s contention that he was on approved leave during that time. The Board determined there is insufficient evidence to support amendment of his DD Form 214 for the period ending 25 January 2022, to remove notation of lost time or correction of the calculation of his net active service this period. During deliberation, the Board noted the applicant, nor his counsel provided sufficient evident to support the applicant had sufficient time to retire. Based on the evidence in the record and that provided by the applicant and his counsel, the applicant did not have sufficient time to retire with 20 years of service. The record reflects the applicant had 15 years, 2 months, and 13 days of net active service with 2 years, 1 month, 6 days prior active service which would be short based on the required calculation time need for consideration of retirement. 3. Furthermore, the Board determined the applicant’s counsel did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant and by a preponderance of evidence that the narrative reason for separation identified on the applicant’s DD Form 214 as unacceptable conduct was in error or unjust. Furthermore, the Board determined the applicant violated General Order #1 and became intoxicated and his conduct was unbecoming of an officer. The Board agreed the amendment of his records to reflect retirement as of 25 January 2022 is without merit. Therefore, relief was denied. 4.. The purpose of maintaining the Army Military Human Resource Record (AMHRR) is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 635-8 (Separation Processing and Documents), 17 September 2019, prescribes policy and procedural guidance relating to transition management. It establishes standardized policy for preparation of the DD Form 214. The DD Form 214 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. a. The specific instructions for item 12c state that the amount of service this period, computed by subtracting item 12a (Date Entered Active Duty This Period) from item 12b (Separation Date This Period). Lost time under 10 U.S. Code 972 and noncreditable time after expiration of term of service (ETS), if any, are deducted. Lost time will be listed in item 29; other noncreditable time will be identified in item 18 (Remarks). b. The specific instructions for item 12d state that from previously issued DD Form 214, DD Form 220 (Active Duty Report), DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purpose), or Retirement Point Annual Statement, enter total amount of prior active military service less lost time, if any. If not applicable, enter “00 00 00.” c. The specific instructions for item 28 state that this is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1 (Separation Program Designator Codes). d. The specific instructions for item 29 state to verify that time lost as indicated by the Defense Finance and Accounting Service has been subtracted from “Net Active Service This Period” (item 12c) if lost time was not “made good.” If the ETS was adjusted as a result of lost time the Soldier served until ETS, the lost time was “made good.” Lost time under 10 U.S. Code 972 is not creditable service for pay, retirement, or veterans’ benefits. However, the Army preserves a record (even after time is made up) to explain which service between “Date Entered Active Duty This Period” (item 12a) and “Separation Date This Period” (item 12b) is creditable service. Time lost after ETS is nonchargeable time under 10 U.S. Code 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits. (1) For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 U.S. Code 972, and periods of nonchargeable time after ETS. (2) For officers, show inclusive dates absent without leave (Article 86 (Absence Without Leave), UCMJ). 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), 13 February 2019, prescribes the specific authorities (statutory, regulatory, and Department of Defense/Army policy) and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Table 2-2 (Officer Personnel) shows the narrative reason for SPD code “KNC” is “unacceptable conduct, under the regulatory authority of Army Regulation 600-8-24. 3. Army Regulation 600-8-24, 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. a. Paragraph 4-2 (Reasons for Elimination) state, while not all inclusive, when one of the following or similar conditions exist, elimination action may be initiated as indicated. (1) Substandard performance of duty. (a) A downward trend in overall performance resulting in an unacceptable record of efficiency, or a consistent record of mediocre service. (b) Failure to keep pace or to progress with contemporaries, as demonstrated by a low record of efficiency when compared with other officers of the same grade and competitive category. (c) Failure to exercise necessary leadership or command expected of an officer of their grade. (d) Failure of an officer to absorb technical proficiency required for grade and competitive category. (e) Failure to properly perform assignments commensurate with an officer’s grade and experience. (f) Apathy, defective attitudes, or other characteristic disorders to include inability or unwillingness to expend effort. (g) Failure to respond to alcohol or drug problem rehabilitation efforts in a reasonable length of time will result in the initiation of elimination action. (h) Failure to conform to prescribed standards of dress, personal appearance, or military deportment. (i) Failure to achieve satisfactory progress after enrollment in the Army weight control program, or failure to maintain the weight/body fat standards after removal from an established weight control program, will result in the initiation of elimination action. (j) When no medical problems exist, and an officer has two consecutive failures of the Army Physical Fitness Test, elimination action will be initiated. (k) Failure of a course at a service school for academic reasons by a probationary or non-probationary Regular Army officer. (l) Failure of a probationary officer to resign when his or her commander determines the best interest of the Government and the individual can be served by the officer’s discharge. (m) The discovery of other conditions concerning a probationary officer that, had they been known at the time of appointment, would have precluded the officer’s appointment. (n) The discovery of any other condition concerning a probationary officer that indicates the officer’s retention in the Army would not be in the best interest of the United States. (o) Probationary Regular Army commissioned and warrant officers entering active duty who are confirmed human immunodeficiency virus positive within 180 calendar days of their original appointment or probationary U.S. Army Reserve or Army National Guard commission and warrant officers who report for initial entry training in an active duty status and are confirmed human immunodeficiency virus positive within 180 calendar days of reporting to active duty will be processed for elimination. (p) Failure to establish an adequate Family Care Plan. (2) Misconduct, moral or professional dereliction, or in the interests of national security. (a) Discreditable failure to meet personal financial obligations (whether intentional or not). (b) Mismanagement of personal affairs that are unfavorably affecting an officer’s performance of duty. (c) Mismanagement of personal affairs to the discredit of the Army (whether intentional or not). (d) Intentional misrepresentation of facts in obtaining an appointment or in official statements or records. (e) Acts of personal misconduct (including, but not limited to, acts committed while in a drunken or drug intoxicated state). (f) Alcohol and drug-related misconduct. (g) Intentional neglect of or failure to perform duties. This includes failure to self- report criminal convictions to the officer’s first-line military supervisor within 15 days of the date the conviction is announced, even if sentence has not been imposed or the officer intends to appeal the conviction. (h) Conduct unbecoming an officer. (i) Conduct or actions that result in the loss of professional status, such as withdrawal, suspension, or abandonment of professional license, endorsement, or certification that is directly or indirectly connected with or is necessary for the performance of one’s military duties. (j) The final denial or revocation of an officer’s Secret security clearance by appropriate authorities. (k) Elimination action will be initiated against an officer who is medically diagnosed as drug dependent or identified as having committed an act of personal misconduct involving drugs. (l) Conduct or actions by a warrant officer resulting in a loss of special qualifications (such as withdrawal/revocation of Criminal Investigation Division accreditation, revocation of marine qualification license, removal from the Personnel Reliability Program, withdrawal of clinical privileges, or loss of flying status) that directly or indirectly precludes a warrant officer from performing in military occupational specialty and is necessary for the performance of those duties. Eliminations based on these reasons may not be utilized if reclassification action is feasible and in the best interest of the Service or if the loss of special qualifications was due to medical reasons beyond the control of the warrant officer. (m) Act of child/spouse maltreatment or abuse and/or other acts of Family violence. (n) Failure of a course at a service school by an RA officer because of misconduct, moral dereliction, or professional dereliction. (o) Conviction by court-martial that did not impose a punitive discharge for a sexually violent offense. (3) Derogatory information. 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 Article 15, UCMJ. (b) Conviction by court-martial. (c) The final denial or revocation of an officer’s Secret security clearance by appropriate authorities acting. (d) A relief for cause officer evaluation report issued. (e) Adverse information filed in the AMHRR. (f) Failure of a course at a service school. (g) Any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions). b. Paragraph 6-1 (Officer Retirement Program) states (1) This chapter applies to non-disability retirement of active duty list commissioned and warrant officers on active duty to include active guard reserve commissioned and warrant officers who have 20 years or more of active federal service. To retire in a commissioned officer grade above the warrant officer grades, an officer must generally have at least 10 years of active service as a commissioned officer. (2) A commissioned officer in the rank of major and below may voluntarily retire in the highest rank served satisfactorily on active for 6 or more months unless entitled by law to a higher grade. (3) A commissioned officer must serve on active duty 3 years in grade to voluntarily retire in rank above major. However, the Secretary of Defense has authorized the Secretary of the Army to waive this requirement to not less than 2 years in individual cases involving extreme hardship or exceptional or unusual circumstances. (4) All retirements, except for disability separations, involving commissioned officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry (except minor traffic infractions), will be forwarded to Deputy Assistant Secretary of the Army (Review Boards) for a grade determination, provided such information is reflected, or should be reflected by regulation, in the officer’s AMHRR. Examples of such findings or conclusions include, but are not limited to, a memorandum of reprimand; nonjudicial punishment under Article 15, UCMJ; court-martial; or civilian conviction. Even if the information is not required to be filed in the officer’s AMHRR, the separation authority may forward any retirement that contains information deemed substantiated, adverse, and material to determination of retired grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003174 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1