IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230004030 APPLICANT REQUESTS: through counsel, removal of the following documents from his Army Military Human Resource Record (AMHRR): * general officer memorandum of reprimand (GOMOR), 29 July 2016 * referred DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 4 March 2015 through 2 March 2016 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) * Counsel's Petition, 27 December 2022, and Table of Contents with the following attachments – * Mental Health Documentation, including Memorandum for Major, Executive Officer, Group Support Battalion, 7th Special Forces Group (Airborne) (7th SFG(A)), (Applicant), 24 September 2015 (Command-Directed Evaluation Results) * Headquarters, U.S. Army Special Forces Command (Airborne), Memorandum (GOMOR), 29 July 2016 * Headquarters, 7th SFG(A), Memorandum (Request for GOMOR, (Applicant)), undated * Chain of Command Filing Recommendations, 17 August 2016 through 1 September 2016 * Headquarters, 7th SFG(A), Memorandum (Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation into the Alleged Misconduct of (Applicant), 6 June 2016 * Former Counsel's GOMOR Rebuttal, 14 August 2016 * Court Records for Alleged Theft, 10 August 2016 through 15 November 2016 * Referred OER * Applicant's Memorandum for Record (Comments to the Referred OER, 4 March 2015 through 2 March 2016), 29 March 2016 * Applicant's Memorandum (Request for Commander's Inquiry), 30 March 2016 * Health Insurance Portability and Accountability Act (HIPPA) Complaint, 23 June 2016 and 31 August 2015 * Inspector General (IG) Complaint, undated * Equal Opportunity (EO) Complaint, 7 January 2016 * Former Counsel's Email Correspondence (Email Exchange to Withdraw EO Complaint), 2 February 2016 through 24 August 2022 * Headquarters and Headquarters Company, Group Support Battalion, 7th SFG(A), Memorandum for Record (Memorandum for Record: Separation Action), 27 January 2016 * Character Letters (2), 11 August 2016 and 29 November 2016 * Exhibit A – Headquarters and Headquarters Company, Group Support Battalion, 7th SFG(A), Memorandum (Character Letter for (Applicant)), 1 December 2016 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel. 3. Counsel states the applicant is a former first lieutenant (1LT) in the U.S. Army, administratively separated in 2017. His AMHRR contains a GOMOR and a negative OER, and he requests removal of these documents. The attached information and explanations show these documents are incorrect and unjust because the applicant was retaliated against for his mental health struggles, and for filing a complaint about experiencing racial hostility from his command. a. He presents a factual timeline of events: the applicant's history from 12 August 2009 when he joined the Army Senior Reserve Officers' Training Corps through 24 September 2020 when the Army Board for Correction of Military Records granted him partial relief by correcting his DD Form 214 (Certificate of Release or Discharge from Active Duty). b. The Army erred by not filing the applicant's GOMOR locally; in effect, punishing him for his ongoing medical issues. The GOMOR reprimanded him for theft, falsifying sick call slips, and failing to be at his assigned place of duty. c. The GOMOR lists "theft" as one of the reasons for issuance. However, it only states the applicant was arrested on 8 September 2015 for retail theft at Walmart, but fails to mention he was never convicted of theft or any other crime. He never entered any plea other than not guilty during the judicial process. He maintained his innocence throughout the entire process and the surveillance video shows his wife returning the stolen items. It is unjust for the Army to falsely label him a thief for something he did not do. d. The GOMOR also lists "falsifying sick call slips" as another reason for issuance. The applicant has a long history of mental health issues, those struggles were exacerbated upon his arrival at 7th SFG(). He had been hospitalized for psychiatric treatment three times and participated in an intensive outpatient treatment program. During his short time at 7th SFG(), he had approximately 100 behavioral health appointments. He reported feeling anxious and nervous related to work because he was under constant scrutiny by his commanding officer (CO), whom he later filed an EO complaint against for discriminatory comments. He was concerned about making mistakes at work and was afraid of being publicly humiliated by his CO; he expressed that he felt as though it would be better if he were dead. On one instance, he had an interaction with a superior officer who publicly raised his voice at him. He asked the officer to go to a private place for the discussion, at which point the officer corrected him for interrupting him while he was speaking and continued to publicly humiliate him in front of peers and subordinates in the unit. This only exacerbated his intense fear of public and workplace embarrassment, breaking down his mental health even further. The 7th SFG() Command Psychologist prepared a written memorandum for the Group Executive Officer summarizing the findings and recommendation made during the applicant's command-directed mental health evaluation. The psychologist noted an adjustment disorder as behavioral health symptoms in response to identifiable stressors with significant impairment in social, occupational, or other important areas of functioning with individuals demonstrating marked distress that is out of proportion to the severity of the stressor. e. The applicant regrets falsifying sick call slips and not being at his assigned place of duty, but his internal struggle made him extremely fearful of being around his CO and other Soldiers in his unit. He falsified sick call slips in a state of desperation. In light of the Army's new recognition and push for recognizing the struggles Soldiers face with mental health and suicide, he and the applicant request that the Board consider this a mitigating circumstance in his falsification of sick call slips and failing to be at his assigned place of duty. f. The Army erred when it allowed a negative OER into the applicant's AMHRR due to neglecting to address the EO complaint filed against his rater. The applicant filed an EO complaint with the 7th SFG() in January 2016 prior to receiving his adverse OER. A few weeks after arriving at the unit, he noticed his CO's treatment was very rude and aggressive compared to other personnel in the unit. He believes this was because of the CO's contempt for people from other countries based on their nationality or accent. The CO was seen by other Soldiers on multiple occasions making fun of the applicant's accent. Further, the CO was observed treating another Soldier, Staff Sergeant (SSG) , from another country with disdain; often counseling him for small mistakes despite his work ethic and dedication to the unit. SSG wrote a letter on the applicant's behalf after he filed an EO complaint (included as Exhibit A). g. The Army erred when it failed to adequately address the applicant's IG and HIPAA complaints. Counsel provides two paragraphs of statements about racial biases and disparities to contend that race may have played a part in how the applicant's case was handled. On 30 March 2016, 1 day after receiving an unfavorable OER, the applicant requested a Commander's Inquiry. There is no evidence showing the commander initiated an inquiry in accordance with regulatory guidance. Further, the applicant filed in IG complaint in October 2016, listing several reasons for the complaint, including denial of leave for 5 months and being promised to be separated for substandard performance with an honorable discharge if he withdrew the EO complaint. In addition to the IG complaint, the applicant filed two HIPAA complaints against the 7th SFG() Psychologist, the first complaint for sharing his mental health information with another major in the group, leading to his removal from platoon leader consideration. The second complaint was a follow-on complaint concerning the conduct of the same psychologist. The applicant asserts the psychologist directed the applicant's behavioral health treatment be moved from Eglin Air Force Base and returned to providers in the group. While the applicant received follow-up questions about both complaints, neither organization provided him with a formal response. His leadership and these organizations could have taken the opportunity to help a Soldier in need; instead, they further worsened his isolation by not acting upon and neglecting his concerns. h. Counsel concludes that the applicant showed a desire to serve the United States through military service. He, like many veterans, struggled with his mental health during and after his service. Since his discharge, he has improved his mental health and continues to further his education, studying law at the Pontifical Catholic University of Puerto Rico School of Law. He wants to continue serving his country, but his path is more difficult because of the unjust adverse information in his AMHRR. His service was honorable but also included stigmatic designations because of his mental health struggles, which were caused by racially hostile treatment from his superiors. 4. The applicant was commissioned as a Regular Army officer in the Ordnance Corps effective 10 May 2014. He was promoted to rank/grade of 1LT/O-2 effective 26 August 2014. 5. The applicant was assigned to Fort Bragg, NC, and serving in the rank/grade of 1LT/O-2 when the incidents leading to his receipt of the GOMOR occurred. a. A Walmart loss prevention specialist from Florida contacted the local police department to report the following: On 31 July 2015, the applicant and his spouse entered a store, went to two sections, selected a General Motors Ceiling Fan valued at $69.97 and a Rock Crawlers Bumper valued at $24.97. After getting the two items, they went to the return desk and returned the items without having first paid for the items. They were reimbursed for the items and left the store. The total amount of the above returned items was $94.94. b. The County Sheriff's Office Booking Report, 8 September 2015, shows the applicant was arrested for the aforementioned shoplifting/retail theft. He was released on a cash bond and his court date was set for 29 September 2015. He completed a pretrial diversion agreement on 6 October 2015. 6. On 14 September 2015, the 7th SFG(A) Command Psychologist completed a command-directed mental evaluation and found the applicant "not suitable for continued military service as a result of longstanding maladaptive personality traits that require extensive treatment. Specifically, the officer was diagnosed with adjustment disorder with mixed anxiety and depressed mood and avoidant personality disorder with dependent traits. Other psychiatric disorders were considered but ruled out after a thorough clinical interview, records review, and psychological testing administered in a standardized format." 7. On 27 January 2016, the applicant submitted a memorandum for record (Memorandum for Record: Separation Action) wherein he stated: "I understand that my command may initiate separation actions against me on the basis of unsatisfactory performance. I understand that this separation action is not based upon any alleged misconduct or less than honorable service; and that it is also not in retaliation to my Equal Opportunity claim that I previously filed." 8. His annual OER covering the period 4 March 2015 through 2 March 2016 (12 months) addressed his duty performance as the Company Administration and Supply Officer, Group Support Battalion, and Headquarters and Headquarters Company, 7th SFG(). His rater is shown as Captain (CPT), Company Commander, and his senior rater is shown as Lieutenant Colonel (LTC), Battalion Commander. His rater and senior rater digitally signed the contested OER on 18 March 2016 and 29 March 2016, respectively. The applicant digitally signed the contested OER on 29 March 2016. The contested OER shows in: a. Part II, block d (This is a Referred Report, Do You Wish to Make Comments?), a checkmark was placed in block signifying to the applicant that he was receiving a referred report and a checkmark was placed in the "Yes" block indicating his intent to submit comments; b. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), block b (This Officer's Overall Performance is Rated as), his rater rated his overall performance as "Unsatisfactory" and entered the following comments: "[Applicant's] performance in this rating period is sub-standard and not commensurate with an officer of his grade. Despite having limited responsibilities, he accomplished very little in support of the unit and our mission due to a lack of follow-through, failure to act on implied tasks, and poor decision-making. In my ten years of service, [Applicant] is the most unproductive officer have ever worked with. He was unable to complete MSAF [Multi?Source Assessment and Feedback] or an OER Support Form"; c. Part IV, block c(1) (Character), his rater commented: "[Applicant] displayed multiple examples of his self-centered character. In a self-initiated award, he took recognition for the work of others and exaggerated his own contribution to the unit. He pursued personal interests rather than work-related responsibilities, and after counseling on selfless service, he responded poorly to retraining"; d. Part IV, block c(2) (Presence), his rater commented: "[Applicant] remained physically fit during this rating period but frequently exhibited unsatisfactory military bearing. He showed a lack of deportment on multiple occasions associated with his failure to follow orders or failure to report to duty, and he did not respond appropriately to corrective counseling"; e. Part IV, block c(3) (Intellect), his rater commented: "[Applicant] showed attention to detail in completing his investigation as a Financial Liability Officer and reviewing two FLIPLs [Financial Liability Investigations of Property Loss] that the company processed. His actions led to the recovery of a laptop and the prevention of an improper filing of the two FLIPLs. However, he showed poor decision-making ability in failing to follow- through or complete implied tasks when coordinating with adjacent units"; f. Part IV, block c(4) (Leads), his rater commented: "[Applicant] built trust with the Supply NCO [noncommissioned officer] that he worked with. Nonetheless, he failed to set the example to that NCO and the other Company Headquarters NCOs and Soldiers by demonstrating poor military bearing, failure to complete assigned tasks and duties, and multiple incidents of failing to report to his assigned place of duty"; g. Part IV, block c(5) (Develops), his rater commented: "[Applicant] created a positive work environment and showed respect for others but was often concerned with his self- interests and his career. He did not show that same effort in developing his fellow NCOs or Soldiers. When given the opportunity to recognize a Soldier's efforts after a demanding Change of Command Inventory, he applied minimal effort and did not meet the standard"; h. Part IV, block c(6) (Achieves), his rater commented: "[Applicant] successfully completed his duties as a Financial Liability Officer. He failed to complete the assigned Group Support Battalion History requirement, failed to communicate with the Battalion S4 in accordance with his duty description, failed to follow orders in communicating with the Battalion Maintenance Control Officer, and failed to follow-through with multiple coordination actions"; i. Part VI (Senior Rater), block a (Potential Compared with Officers Senior Rated in Same Grade), his senior rater rated his overall potential as "Not Qualified"; and j. Part VI, block c (Comments on Potential), his senior rater entered the following comments: "[Applicant's] personal and professional conduct are not at all commensurate with what is expected of an officer in the United States Army. He has zero potential for further service in the military. Do not retain." 9. On 29 March 2016, the applicant submitted a memorandum for record (Comments to Referred OER, 4 March 2015 through 2 March 2016) wherein he stated: These comments are submitted in response to the referred Officer Evaluation Report ("the OER") for 20150304 [4 March 2015] through 20160302 [2 March 2016]. For reasons identified below, I ask that that this OER be returned to my chain of command for reconsideration. The OER contains both procedural and substantive inaccuracies that undermine the validity of the report and present a distorted view of my service during the time period in question. Although the OER states that I was unable to complete an OER support form, I have in fact completed same and ask that it be considered. The OER has been issued for a period of one year with CPT as rater, and LTC as senior rater. For nearly half of the period covered, March 2015 through approximately September 2015, my rater was actually CPT . Army Regulation (AR) 623-3, paragraph 2-4, states that "the rating chain for a rated Soldier will be established at the beginning of the rating period." I understand that circumstances may have necessitated a change in rater, and that AR 623-3 contains specific guidance for a situation in which a rater is relieved for cause. AR 623-3, paragraph 2-19, requires that a determination be made with regard to whether the minimum time period for an OER has been met. If the minimum time period for an OER has been met, there must be additional determinations regarding whether an individual in the rated Officer's rating chain may complete the evaluation. or whether the time should be considered nonrated time. I am not aware of any such determination being made in my case; instead, CPT has completed the OER as my rater, including the time frame in which CPT served as rater. Additionally, there was a period of time in which CPT was my commander, but not immediate supervisor, as I worked in the SPO section under Major . AR 623-3 further requires that the rater will provide a copy of their own support form, in addition to the senior rater's support form, at the beginning of the rating period. The rater is also directed to conduct initial counseling, and periodic counseling, regarding the rated Soldier's duty description and performance objectives. In the period covered by the OER, I received counseling by CPT in which I was advised that my primary duties were to focus on my medical and mental health treatment and to process what was then an unqualified resignation from the Service. Other than CPT 's support form, I have not received a support form from any other rater/senior rater. That my counseling from CPT referenced a need to focus on medical and mental health treatment is consistent with the personal circumstances that impacted my ability to perform military duties and prompted the submission of an unqualified resignation during this rating period. During the period of this OER, I was referred to a Command-Directed Mental Health Evaluation (CDMHE). The CDMHE indicated that I was not suited for continued military service and that my medical and mental health conditions required extensive treatment. The treating providers have determined that my conditions do not meet the requirements to [for consideration by] a Medical Evaluation Board (MEB), but instead recommended administrative separation as my conditions complicated successful service. At the time of the CDMHE, the Chain of Command was aware that my conditions had a significant impact on my duty performance. Nonetheless, my rater's evaluation of my performance on the OER presents a review absent of any consideration of my mental health conditions. Further, I am concerned that the comments contained in the report may constitute inappropriate or arbitrary remarks prohibited by AR 623-3. I continue to believe that my rater may possess bias or prejudice against me and that the OER contains comments reflecting that bias or prejudice. ? For these reasons, I ask that the following action be taken with regard to my OER: a. That the OER be returned to the chain of command; b. That a determination be made regarding the time in which CPT served as my rater, and the status of that time for this OER; c. That CPT make a determination as to whether he can in fact provide an impartial and unbiased review of my performance; and d. That my performance be considered in light of the medical and mental health conditions present during the rating period 10. On 30 March 2016, the applicant submitted a memorandum for the Commanding General, 1st Special Forces Command (Airborne) (Request for Commander's Inquiry) wherein he requested an inquiry into his OER covering the period of 4 March 2015 through 2 March 2016 pursuant to the provisions of Army Regulation 623-3. The OER and his comments were included with his request. He requested placement of the OER in a temporary holding status pending an inquiry. 11. A review of the applicant's AMHRR revealed the contested OER is filed in the performance folder. His records contain no evidence indicating a Commander's Inquiry was initiated or completed. 12. The applicant became the subject of an Army Regulation 15-6 investigation on 22 April 2016. An investigating officer (IO) was appointed to investigate the facts and circumstances surrounding the applicant's alleged misconduct. The IO was directed, at a minimum, to address the following: a. gather documentary evidence in the form of memorandums for record and counseling statements for all instances where the applicant failed to report to his assigned place of duty since his assignment to 7th SFG(A) on or around 4 March 2015. Highlight each instance, reference the specific supporting evidence as an exhibit, and document any excuse the applicant provided for why he failed to report; b. determine if the sick call slips the applicant provided to his supervising officer from Twin Cities Emergency Department were falsified. Gather copies of the sick call slips from First Sergeant and include them as an exhibit in the investigation; and c. verify all personnel records to include the following: birth certificates for the applicant, his spouse, and his children; marriage certificate of the applicant and spouse; documents submitted to U.S. Army Human Resources Command and finance with dates of birth and date of marriage; verification of all college transcripts; course certificates and orders for airborne and air assault school; any other pertinent documents within the applicant's AMHRR. Verifying the above documents includes determining if the applicant has misled the Army in any way about his background or forged any of these documents or any information in them. 13. The IO's memorandum for Commander, 7th SFG(A) (Army Regulation 15-6 Investigation into the Alleged Misconduct of (Applicant)), 6 June 2016, noted the following findings: a. Documentary evidence in the form of memorandums for record and counseling statements for all instances where the applicant failed to report or departed while not authorized from his assigned place of duty since his assignment to 7th SFG(A): The greater weight of the evidence supports a finding that the applicant engaged in the following misconduct: * 24 September 2015 – failing to report to physical training (PT), claimed unaware of requirement to attend * 2 October 2015 – leaving PT without communication or accountability, arrived but left without explanation or participation in training * 11 December 2015 – reported but not accounted for during PT, claimed his psychologist advised him not to go near crowds, but had no documentation to support his claim * 14 January 2016 – being 5 hours late on 7 January 2016 * 5 April 2016 – failing to report to the Troop Medical Center at 0800, suspected of falsifying sick call slips * 5 April 2016 – after being warned, violating policy by taking a cellphone into a secure area * April 2016 – while temporarily assigned to the 7th SFG(A) Chaplain's Office, leaving his assigned place of duty without permission and making threats to injure people in 7th SFG(A) * 19 April 2016 – failure to report to his assigned place of duty * 21 April 2016 – left his appointed place of duty without authorization, a direct violation of a previously given order b. Validation of sick call slips the applicant provided to his supervisory chain from Twin Cities Emergency Department: The greater weight of the evidence supports a finding that the applicant falsified sick call slips on 21 February 2016 and 4 April 2016, and presented sick call slips to the chain of command that allowed him to miss 72 hours of work. * 21 February 2016 – the applicant provided a sick call slip to First Sergeant for treatment he had allegedly received from Twin Cities Hospital that day, his explanation was taken at face value until he presented an identical sick call slip on 4 April 2016 * 4 April 2016 – the applicant informed his command he was treated and discharged from Twin Cities Hospital Emergency Department at about 0300, and was given 3 days of bed rest, he sent documentation that allegedly came from the hospital; however, the facility stated they never treated him c. Verification of documents to determine if the applicant has misled the Army in any way about his background or forged any documents and/or information in them: The greater weight of the evidence does not support a finding that the applicant misled the Army by providing an incorrect date of birth or that his awards were falsified. The evidence does support a finding that the applicant failed to self-report his entering into a pretrial diversion for retail theft. On 17 July 2015, the applicant and his spouse were arrested at the Niceville Walmart and charged with retail theft. The applicant was banned from Walmart and issued a subpoena for a court hearing. The applicant entered into a pretrial diversion. However, in accordance with Army Regulation 600-20, paragraph 4-23, U.S. Army commissioned officers who are on active duty will report, in writing, any conviction for violation of a criminal law of the United States. The applicant never reported his conviction and was counseled for not self-reporting the theft. d. Based on the findings, the IO recommended the applicant's elimination from the service and receipt of a GOMOR. 14. The CO's memorandum for Commander, U.S. Army Special Forces Command (Airborne) (Request for GOMOR, (Applicant)), unspecified date, requested issuance of a GOMOR to the applicant for the following reasons: On 31 July 2015, [Applicant] entered a Walmart located at 1300 E. John Sims Parkway with his spouse,. They selected a General Motors Ceiling Fan valued at $69.97 and a RC [Rock Crawlers] Bumper valued at $24.97. They proceeded to the customer service desk and returned the items. They were reimbursed the money for the items and left the store. The total value of the items returned was $94.94. On 3 September 2015, an arrest warrant was issued and on 8 September 2015, [Applicant] was arrested by Niceville Police Department officers. [Applicant's] civilian case was closed under a Pretrial Diversion Agreement. On 22 April 2016, I appointed CPT pursuant to Army Regulation 15-6 to investigate the facts and circumstances surrounding the conduct of [Applicant]. On 11 June 2016, CPT 's investigation found that [Applicant] engaged in various acts of misconduct to include leaving his place of duty without authorization, failing to report to assigned place of duty, disobeying a lawful order. The investigation also found that [Applicant] falsified sick-call slips on 14 February 2016 and 4 April 2016. 15. The applicant was reprimanded in writing by the Acting Commanding General, Headquarters, 7th SFG(A), on 29 July 2016, wherein he stated: You are hereby reprimanded for theft, falsifying sick call slips, and failing to be at your assigned place of duty. On 8 September 2015, you were arrested by Niceville police officers for retail theft at Walmart. On 11 June 2016, an Army Regulation 15-6 investigation determined that you falsified sick-call slips on 21 February 2016 and 4 April 2016, failed to obey a lawful order from your supervisor, failed to report to your assigned place of duty, and left your place of duty without proper authorization. Your behavior in this matter demonstrates a complete lack of judgment and responsibility. You have discredited yourself, the United States Army Special Forces Command (Airborne), and the United States Army. Your conduct constitutes a serious departure from the high standards of integrity and professionalism expected of a commissioned officer of this command. This behavior cannot and will not be tolerated, and it forces me to seriously consider your suitability for continued service as a commissioned officer in the United States Army. This reprimand is administrative in nature and is not imposed as punishment under the UCMJ. I have enclosed the information upon which I based this reprimand. Under the provisions of AR 600-37, paragraph 3-6, you will acknowledge this memorandum in writing. You may submit a written rebuttal to this reprimand and should include any other documents or statements you would like me to consider. You have seven days to submit your written rebuttal. I have not made a determination regarding the filing of this reprimand and will carefully consider any matters you submit in rebuttal before making the final decision. I will notify you in writing of the final filing decision. 16. The commander's filing decision is not available for review. 17. On 14 August 2016, the applicant's previous counsel submitted a rebuttal via email on behalf of the applicant, requesting to file the GOMOR in his local unit file for the following reasons: a. Mental Health Issues. "[Applicant] has a significant history of mental health issues since arriving at 7th Special Forces Group. In total, he was seen by behavioral health approximately 100 times, admitted to inpatient mental health three (3) times, and participated in intensive outpatient treatment two (2) times all within an approximately one-year period. [Applicant] has been diagnosed with Major Depressive Disorder and has had frequent thoughts of suicide. Unfortunately, the onset of his mental health issues appears to have occurred soon after arriving at 7th Special Forces Group; as [Applicant] began seeking mental health treatment less than one month after arriving at the unit." b. Disparaging Remarks about Mental Health Issues by Previous Company Commander. About a month after arriving at 7th SFG(A), the command launched an investigation against the applicant's former company commander, CPT , due to the fact that CPT had made disparaging remarks about mental health disorders knowing that the applicant had been seeking mental health treatment. These remarks caused the applicant emotional strain and added to his mental health decline. The applicant was never provided a copy of the investigation. Unfortunately, it appears that the applicant became extremely disliked by leaders and peers within the unit immediately after the investigation was initiated. In essence, the applicant was "under the microscope," so to speak. This caused the applicant to feel isolated, more depressed, and frightened to participate in group events such as team physical training. Unfortunately, the only leader who seemed to try to understand and devise a plan to work with the applicant's mental issues was CPT . According to CPT , he believes that others in the command did not try to determine the best way to handle the applicant's mental health issues and that contributed to the steady decline in the applicant's work performance. c. The previous counsel also details the same contentions for the applicant's theft, falsification of sick slips on 21 February 2016 and 4 April 2016, failure to obey a lawful regulation from his superior, failure to report to assigned place of duty, and leaving his place of duty without proper authorization. d. Counsel added the command's blanket "No-Leave Policy." The applicant had been denied leave since being under investigation for the alleged theft. His command would not even permit him to take local leave. The command affirmed that they did not believe he was a flight risk but nonetheless adhered to a blanket policy not permitting leave for those who are flagged. "While leave may be a privilege not a 'right,' the example of not allowing flagged Soldiers to take leave demonstrates how 7th Special Forces Group refuses to consider individual circumstances such as mental health and puts every Soldier into the same box. Soldiers who are undergoing adverse administrative action are at high risk for committing suicide. Yet, the command refuses to recognize this and will not grant local leave." 18. On 15 November 2016, an Okaloosa County Judge granted the applicant's request to expunge all information concerning his arrest on 8 September2015 by the Okaloosa County Sheriff for "Shoplifting Petit Theft from Merchant."? 19. On 1 May 2017, the Department of the Army Ad Hoc Review Board reviewed the Probationary Officer Elimination Case against the applicant and determined he would be involuntarily eliminated from service under the provisions of Army Regulation 600-8-24, paragraph 4-2b, based on misconduct and moral or professional dereliction, with characterization of his service as honorable. 20. He was honorably discharged on 12 May 2017. He completed 2 years, 7 months, and 22 days of net active service during this period. 21. On 14 July 2020 in ABCMR Docket Number AR20170018022: a. The Board found sufficient evidence to grant the applicant's request to correct his DD Form 214 for the period ending 12 May 2017. The Board found the preponderance of the evidence indicated the applicant's behavioral health conditions mitigated his misconduct that resulted in the discharge narrative reason of "Unacceptable Conduct." The Board partially disagreed with the Army Review Boards Agency medical advisory opinion that the applicant's behavioral health conditions did not mitigate the misconduct. While the Board acknowledged that the applicant's misconduct was related to a personality disorder, the Board applied liberal consideration and found that evidence, including Department of Veterans Affairs medical records showing service connection for major depressive disorder on the day after separation, counsel's statements, and the applicant's positive performance while being treated for his worsening behavioral health conditions, were sufficient to warrant a change in the narrative reason to "Secretarial Authority." b. The Board found insufficient evidence to grant the applicant's request to submit his case to the Disability Evaluation System for medical boarding. The Board agreed with the Army Review Boards Agency medical advisory opinion that major depressive disorder is a boardable condition if it is not responsive to treatment creating occupational impairment, but there is insufficient contemporaneous medical evidence showing the applicant suffered from major depressive disorder, rather that the applicant had periods of partial remission of his symptoms with exacerbation coinciding with difficulties at work due to his personality disorder. The Board agreed with the Army Review Boards Agency medical advisory opinion that his military records prior to his first active duty assignment show he had difficulty with authority, the military structure, and completion of requirements. The psychologist opined he continued to have difficulties upon entry on active duty based on a long-standing pattern of behavior consistent with diagnosis of a personality disorder, not major depressive disorder. c. As a result, the Board granted the applicant partial relief by amending his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 May 2017 to show in: * item 23 (Type of Separation) – "Release from Active Duty" vice "Discharge" * item 25 (Separation Authority) – "Army Regulation 600-8-24, paragraph 2-5" vice "Army Regulation 600-8-24, paragraph 4-2b" * item 26 (Separation Code) – "KFF" vice "JNC" * item 28 (Narrative Reason for Separation) – "Secretarial Authority" vice "Unacceptable Conduct" 22. Counsel provided the following evidence in addition to those documents discussed above: a. a second command-directed behavioral health evaluation the applicant underwent on 17 November 2016 with corresponding referrals and medical documentation. The memorandum noted: "After release to the Commander, it is no longer covered by the Health Insurance Portability and Accountability Act (HIPAA)"; b. two HIPPA complaints, an IG complaint, and an EO complaint with corresponding documentation; c. an email exchange between the applicant's former counsel and the 7th SFG(A) Judge Advocate General regarding withdrawal of his EO complaint in exchange for separation under substandard performance with an honorable discharge; d. two character-reference letters from his former commander, CPT , attesting: During my time in command, I assigned him as the Investigating Officer for two FLIPLs and administrative tasks within the company. I was aware of his mental health issues, not necessarily the extent and did my best to work with him. Unfortunately, l believe others in the command did not try to figure out the best way to deal with his mental health issues and it could have contributed to the steady decline in [Applicant's] work performance. With the high rate of suicide in the Army, I was surprised to learn that other leaders simply disregarded [Applicant's] mental health issues. I did not have any issues with any of [Applicant's] work that l assigned to him. He was consistent on updating me as to the status of all assigned taskers and all his appointments with mental health. I observed him to be very proactive and very thorough in completing all taskers. This became very apparent when he himself found a missing FLIPL item (a laptop) during the course of his investigation. Despite the challenges posed by his current mental state, I believe [Applicant] could have become a great asset to any unit so long as he had the right mentorship and leadership. Unfortunately, it sounds like it is very unlikely that [Applicant] will be retained. Accordingly, I request that you give him an honorable discharge so that he will be able to find meaningful employment if he is separated. e. a character-reference letter from SSG , attesting that he worked with the applicant on numerous tasks, including two FLIPLs, a change of command inventory, counseling Soldiers, and recommending awards. He stated the applicant created a positive work environment and showed attention to detail in every task. He was proactive, built trust, and showed attention to detail. The applicant felt targeted by CPT . 23. MEDICAL REVIEW: a. Background: The applicant is requesting ABCMR remove a GOMOR and adverse OER from his permanent file. The applicant asserted other mental health is related to his request 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: * Applicant enlisted into the Regular Army officer in the Ordnance Corps effective 10 May 2014. He was promoted to rank/grade of 1LT/O-2 effective 26 August 2014. * A Walmart loss prevention specialist from contacted the local police department to report the following: On 31 July 2015, the applicant and his spouse entered a store, went to two sections, selected a General Motors Ceiling Fan valued at $69.97 and a Rock Crawlers Bumper valued at $24.97. After getting the two items, they went to the return desk and returned the items without having first paid for the items. They were reimbursed for the items and left the store. The total amount of the above returned items was $94.94. The applicant was arrested on 8 September 2015. He completed a pretrial diversion agreement on 6 October 2015. * The applicant received and signed a referred OER on 29 March 2016. * The applicant became the subject of an Army Regulation 15-6 investigation on 22 April 2016 (investigating the alleged misconduct). Multiple incidents of misconduct were found between 24 September 2015 and 21 April 2016 to include failing to report (x4), leaving duty without communication or accountability (x2), being late, falsifying sick slips, leaving duty without permission and making threats toward people. In addition, it was found that he did not report his arrest and pretrial diversion to his unit. Based on the findings, elimination and GOMOR were recommended. * The applicant was reprimanded in writing by the Acting Commanding General, Headquarters, 7th SFG(), on 29 July 2016. * On 14 August 2016, the applicant's previous counsel submitted a rebuttal via email on behalf of the applicant, requesting to file the GOMOR in his local unit file, citing mental health issues as a reason. * On 15 November 2016, an Okaloosa County Judge granted the applicant's request to expunge all information concerning his arrest on 8 September2015 by the Okaloosa County Sheriff for "Shoplifting Petit Theft from Merchant.” * On 1 May 2017, the Department of the Army Ad Hoc Review Board reviewed the Probationary Officer Elimination Case against the applicant and determined he would be involuntarily eliminated from service under AR 600-8-24, paragraph 4- 2b, based on misconduct and moral or professional dereliction, with characterization of his service as honorable. * He was honorably discharged on 12 May 2017. * On 14 July 2020, the ADRB granted the applicant partial relief by amending his DD Form 214, to include item 23, 25, 26, and 28 all to read with less stigmatizing information. 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), DD Form 214, documents from his service record and separation, as well as his counsel’s petition, mental health documentation, GOMOR and rebuttal, court records, referred OER, numerous memos, HIPPA complaint, IG complaint, EO complaint, and character letters. 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. d. The applicant’s counsel is requesting that the GOMOR and referred OER be removed from his file as they are “incorrect and unjust because the applicant was retaliated against for his mental health struggles, and for filing a complaint about experiencing racial hostility from his command.” Hence, counsel asserts other mental health is related to their request for these changes. The applicant’s records reflect he has previously been provided relief through numerous amendments to his DD Form 214. e. The applicant was actively engaged in mental health care during his time in service. The applicant first engaged in mental health care 20 March 2015, reporting depression, anxiety and suicidal ideation and a desire to get out of the military. He was initially diagnosed with an adjustment disorder with anxiety and depressed mood. He was referred to an intensive outpatient program and when complete, followed up with an outpatient program (Psychological Performance Program or P3). He had a reoccurrence of suicidal ideation and was hospitalized in April of 2015, and again in June of 2015. He then completed another IOP in August of 2015. Between higher level episodes of care, he was engaged in outpatient care, both with his unit mental health, and then with Eglin, after requesting a transfer. He has been diagnosed with adjustment disorder with mixed anxiety and depressed mood, narcissistic personality disorder, avoidant personality disorder with dependent traits, personality disorder unspecified, major depressive disorder (MDD), and had frequent thoughts of suicide. In sum, his records support that from March 2015 to his discharge in May 2017 he had over 200 encounters, to include outpatient care, medication management, three inpatient stays and two IOPs. f. In terms of administrative mental health engagement, on 14 September 2015, the 7th SFG() Command Psychologist completed a command-directed behavioral health evaluation (CDBHE), with results outlined in a 24 September 2015 memorandum (memo). The applicant was found "not suitable for continued military service as a result of longstanding maladaptive personality traits that require extensive treatment. Specifically, the Officer was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Avoidant Personality Disorder with Dependent Traits.” The memo also highlights his extensive treatment history, to include being treated by seven providers all with similar findings. It was also made clear that he does not suffer from a behavioral health condition(s) that require submission for a Medical Evaluation Board (MEB) according to AR 40-501. Also, “It was recommended that the Officer should be administratively separated as expeditiously as possible.” g. The applicant was seen for a second CDBHE on 17 November 2016 and a memo was produced. He was noted as having a diagnosis of unspecified personality disorder with a rule out of borderline personality disorder. His ability to function in the military was significantly impaired and he was deemed medically unsuitable for continued service, as he did not meet medical retention standards. However, he was not diagnosed with any condition that made him unfit, and therefore, again an MEB would not be appropriate. A memo clarifying these results was also provided on 2 December 2016, addressing that the applicant had previously been diagnosed with a potentially boardable diagnosis but that objective and collateral data did not support the previous diagnosis. Another memo was included form a previous provider at Bayer NeuroBehavioral Center, dated 5 December 2016, that stated he’d been previously treated for MDD – recurrent – moderate with anxious features and a rule out of avoidant personality disorder. An MEB process note dated 20 January 2017 further clarifies that while MDD was present: …the patient’s diagnosis/root of his problem is a personality disorder [Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition, Text Revised – Personality Disorder Not Otherwise Specified / DSM V – Unspecified Personality Disorder], this significantly impairs his ability to function, is not amenable to treatment, should be administratively processed under a Chapter 5-13, and does not qualify for an MEB; as his mood and anxiety conditions are actually the result of his personality disorder. h. Per the applicant’s VA EHR, he is 100% service connected, with 70% for MDD. The applicant has been engaged in care at the VA, to include mental health care, since 2018. He has been diagnosed with MDD – recurrent (mild, moderate, severe and unspecified), and anxiety disorder – unspecified. He has engaged in outpatient therapy and medication management. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, and while minimal data was available it did reflect a prescription for Prozac. No other medical records were provided. i. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a condition or experience at the time of service that partially mitigates his discharge. 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 and counsel asserted other mental health. (2) Did the condition exist or experience occur during military service? Yes, the applicant and counsel assert the potentially mitigating condition occurred during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant already has an honorable discharge and has been granted partial relief by amending his DD Form 214. The applicant and his counsel are now requesting that ABCMR remove a GOMOR and adverse OER from his permanent file, asserting other mental health as a consideration. Personality disorders are not considered mitigating mental health conditions. That said, the applicant was diagnosed with both an adjustment disorder and a MDD during his time in service, as well as a personality disorders (unspecified personality disorder, narcissistic personality disorder, avoidance personality disorder with dependent traits and rule out of borderline personality disorder), and the applicant has since been service connected for MDD. Avoidance behaviors, such as failure to report and leaving his place of duty is consistent with numerous mental health concerns, to include depression. However, falsifying sick slips to cover his behavior is not part of the natural history and sequalae of depression, nor other asserted experiences (feeling mistreated by leadership). His diagnosed conditions do not impact his ability to know the difference between right and wrong, and act in accordance with the right. In addition, the applicant’s GOMOR suggests he committed theft however the records show he was never found guilty of this crime, nor did he plead guilty, though he did complete a pretrial diversion agreement. Regardless, theft is not a behavior that would be mitigated by his asserted conditions or experiences. j. As stated, the applicant’s record reflects that his mental health was already factored into the type of discharge he received and changes to his record. Through repeated evaluations, his misconduct and inability to perform his duty, was found to be related to his personality disorder and not the mitigating condition of MDD. Based on his diagnosis of MDD, there is sufficient evidence to support a mitigating condition was present during his time in service though this at best, only partially mitigates his behavior. His GOMOR and OER appear to still accurately reflect his poor performance and misconduct, which was primarily if not wholly secondary to his personality disorder a non-mitigating condition. 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 through counsel carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review through counsel of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding sufficient evidence to support the applicant had a condition or experience at the time of service that partially mitigates his discharge. The Board agreed there was partial mitigation that the applicant was diagnosed with both an adjustment disorder and a MDD during his time in service, as well as a personality disorders (unspecified personality disorder, narcissistic personality disorder, avoidance personality disorder with dependent traits and rule out of borderline personality disorder), and the applicant has since been service connected for MDD. Avoidance behaviors, such as failure to report and leaving his place of duty is consistent with numerous mental health concerns, to include depression. 2. However, the Board concurred with the opine findings that the applicant’s actions of falsifying sick slips to cover his behavior is not part of the natural history and sequalae of depression, nor other asserted experiences (feeling mistreated by leadership). Furthermore, the applicant’s diagnosed conditions do not impact his ability to know the difference between right and wrong, and act in accordance with the right. The Board determined after careful review 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 contents of the referred Officer Evaluation Report (OER)) and the general officer memorandum of reprimand (GOMOR) are substantially incorrect and support removal. The Board found no evidence that neither the OER or GOMOR was unjust or untrue or inappropriately filed in the applicant's AMHRR. Therefore, relief was denied. 3. The purpose of maintaining the Army Military Human Resource Record (AMHRR) is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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; it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of evidence. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's Official Military Personnel File (OMPF) only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). c. Paragraph 7-2 (Policies and Standards) states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d. Paragraph 7-3c (Filing Authority to Redress Actions) states an officer who directed filing an administrative memorandum of reprimand, admonition, or censure in the AMHRR may request its revision, alteration, or removal, if evidence or information indicates the basis for the adverse action was untrue or unjust, in whole or in part. An officer who directed such a filing must provide a copy of the new evidence or information to the Department of the Army Suitability Evaluation Board to justify the request. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR includes, but is not limited to the Official Military Personnel File, finance-related documents, and non-service-related documents deemed necessary to store by the Army. a. Paragraph 3-6 (Authority for Filing or Removing Documents in the AMHRR Folders) provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or another authorized agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows memorandums of reprimand, censure, and admonition are filed in accordance with Army Regulation 600-37. 5. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluations reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 2-12 (Rater) states the rater will provide an objective and comprehensive evaluation of the rated Soldier's performance and potential, as applicable, on the evaluation report. b. Paragraph 3-20(d) (Unproven Derogatory Information) provides that any mention of unproven derogatory information in an evaluation report can become an appealable matter if the derogatory information is shown to be unfounded. c. Paragraph 3-26 (Referred Evaluation Reports) provides that any report with negative remarks about the rated officer's values or leader attributes/skills/actions in the rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to Headquarters, Department of the Army (HQDA). d. Paragraph 4-7 (Policies) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by the HQDA Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by the HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. e. Paragraph 4-8 (Timeliness) states substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time would require the appellant to submit his or her appeal to the ABCMR. The Army Special Review Board will not accept appeals over 3 years old or appeals from Soldiers who are no longer serving on active duty or as part of the U.S. Army Reserve or Army National Guard. f. Paragraph 4-11 (Burden of Proof and Type of Evidence) states to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. 6. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA that are the basis for the Army's Evaluation Reporting System. Paragraph 6-1 (Deciding to Appeal) states an appellant who perceives that an evaluation report is inaccurate in some way has the right to appeal for redress to the appropriate agency. However, before actually preparing an appeal, an objective analysis of the evaluation report in question should be made. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004030 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1