IN THE CASE OF: 

		BOARD DATE:  18 February 2022

		DOCKET NUMBER: AR20210013541


APPLICANT REQUESTS: reconsideration of his prior denied requests in 
conjunction with new requests as follows,

1.  Previous applications considered the following requests by the applicant to 
correct his record by:

*	directing a Medical Evaluation Board (MEB) and Physical Evaluation 
Board (PEB) review his mental health conditions with a finding he was 
unfit for duty with subsequent placement on the Temporary Disability 
Retired List (TDRL) or Permanent Disability Retired List (PDRL) [with an 
assigned disabling rating of 30 percent]
*	if placed on the TDRL or PDRL, payment of retired pay retroactive to his 
date of separation 16 November 2012
*	if not placed on the TDRL or PDRL, reinstatement on active duty 
*	if reinstated on active duty, removal of a General Officer Memorandum of 
Reprimand (GOMOR) and two referred DA Forms 67-9 (Officer Evaluation 
Report (OER)) from his records
*	retroactive consideration for promotion on the Fiscal Year 2008 Major 
Promotion Board
*	if promoted, payment of arrears and allowances

2.  Through a second court remand, he and his counsel request the following 
corrections based on new arguments:

*	removal of his GOMOR based on its erroneous filing that was directed by 
an unauthorized officer
*	upon removal of the unlawfully filed GOMOR, in effect, voiding the 
Department of the Army separation actions including his Board of Inquiry 
and subsequent decision by the Deputy Assistant Secretary of the Army 
(Review Boards) (DASA (RB)) to separate him for unacceptable conduct
*	or concurrently processing him through the Disability Evaluation System 
(DES) and the officer administrative separation process in a "dual 
process" as required by regulation

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	Second amended complaint filed in U.S. Court of Federal Claims
*	U.S. Court of Federal Claims, Defendant’s Consent Motion for Voluntary 
Remand filed 20 August 2021
*	U.S. Court of Federal Claims order filed on 20 August 2021

PREVIOUS BOARD CASE FILES RECORD OF PROCEEDINGS (ROP) WITH 
THEIR RESPECTIVE SUPPORTING EVIDENCE:

*	Army Board for Correction of Military Records (ABCMR) in Docket 
Number AR20140008998 on 7 April 2015
*	ABCMR Docket Number AR20150012081 on 6 December 2016
*	ABCMR Docket Number AR20190003089 on 20 November 2020

FACTS:

1.  On 20 August 2021, the U.S. Court of Federal Claims granted the applicant 
and his counsel’s request to remand ABCMR Docket Number AR20190003089 
back to the ABCMR. The court order states, "On remand, the ABCMR shall 
consider and determine the claims presented by the plaintiff in the second 
amended complaint or reconsider the merits of those claims. The ABCMR shall 
also consider whether any of its alleged errors was harmless, based upon the 
existing record." In effect, the court is requesting a de nova review with new 
arguments. Counsel’s arguments or reasons for remanding the applicant’s case 
back to the ABCMR include the fact the applicant is a veteran and he should 
have one final opportunity with the benefit of counsel to make new arguments 
that were not previously considered by the ABCMR. Secondly, it is appropriate 
for the ABCMR to have an opportunity to review the applicant’s new claims. 
Lastly, during this remand the ABCMR potentially could provide the applicant 
with all the relief he currently seeks, which would moot this action and obviate the 
need for further court litigation. 

     a.  Counsel claims Department of the Army (DA) wrongfully discharged the 
applicant denying him disability retired pay. The applicant is a combat veteran 
with multiple tours in support of operations in Southwest Asia. During his combat 
tours he was exposed to the atrocities of war. Upon his return he suffered from 
multiple mental health disorders that went undetected by his chain of command 
and untreated by medical providers. Without a diagnosis and the support of 
mental health providers, he engaged in unacceptable conduct for a 
commissioned officer. Upon notification he would receive a GOMOR for his 
unacceptable conduct, he considered suicide by hanging. He was hospitalized 
for 10 days in a civilian residential psychiatric hospital. Counsel argues, in effect, 
that based on the applicant’s 10-day hospitalization he should have immediately 
been referred into the DES. Counsel further argues that the applicant should 
have been "dual processed" inferring the applicant should have concurrently 
undergone DES processing and administrative separation processing. Counsel 
argues based on administrative error, the applicant is due disability retirement 
compensation and benefits with an assigned 30 percent disabling rating effective 
in 2008 and thereafter up to his date of separation on 16 November 2012. [The 
proposed 30 percent disabling rating is based on a Department of Veterans 
Affairs (DVA) rating for anxiety disorder not otherwise specified and major 
depressive disorder.]

     b.  In reviewing the applicant’s GOMOR filed within his official military 
personnel record, counsel states a commissioned officer, who was not the 
general officer who imposed the GOMOR or within the applicant’s chain of 
command, directed its filing in his record. Counsel claims an acting commander 
in the rank of colonel improperly acted and ordered the filing of the GOMOR in 
the applicant’s permanent record. Based on the improper filing of the GOMOR, 
the applicant then underwent administrative separation proceedings that 
eventually led to his elimination from the Regular Army. The separation authority 
failed to take into consideration the effects of his mental health condition. During 
his elimination proceedings, he was also improperly removed from consideration 
by an officer promotion board to major (pay grade O-4). These errors on the part 
of Army officials wrongfully denied the applicant the compensation he is due as a 
result of his military service.  

     c.  Counsel argues the previous ABCMR decisions concerning the applicant’s 
record were arbitrary and capricious, failed to follow law and regulations, and 
were not supported with substantial evidence. 

     d.  The statutory bases for invoking jurisdiction are Title 37, U.S. Code, § 204 
and Title 10, U.S. Code, § 1201. These statutes mandate the payment of active 
duty pay and allowances for military members and retired pay for a Service 
member who is found unfit for service with a disabling rating of 30 percent or 
higher. This complaint alleges money damages in excess of $10,000. 

     e.  The regulatory bases for invoking the Court’s jurisdiction are Army 
Regulation 600-8-24 (Officer Transfers and Discharges) and Army Regulation 
635-40 (Physical Evaluation for Retention, Retirement, or Separation). 

2.  Incorporated herein by reference are military records which were summarized 
in the previous consideration of the applicant's case by the ABCMR in Docket 
Numbers AR20140008998 on 7 April 2015; AR20150012081 on 6 December 
2016; and, AR20190003089 on 20 November 2020.
3.  Counsel provided the court with a narrative complaint. 

     a.  In effect, he states the applicant honorably served as an enlisted Soldier in 
the Regular Army for 4 years. He accepted a commissioned officer’s appointment 
in the U.S. Army on 19 March 1999 serving as an Armor Officer. 

     b.  He deployed to Iraq where he was exposed to several combat stressors. In 
2005, he was the patrol commander when his vehicle overturned in a canal. One 
Soldier drowned as a result of this accident and the applicant assisted in 
retrieving the deceased Soldier’s body from the canal. In 2006, again in Iraq he 
and his unit were tasked with removing dead Iraqi civilian bodies from canals. 
The bodies showed signs of torture and were bloated. He and his unit received 
small arms fire [from enemy forces]. When he served as a company commander, 
one of his lieutenant’s was killed by an enemy sniper. He was not given 
permission by headquarters to pursue the enemy sniper until hours later. In 
2007, his unit was hit by an improved explosive device while on a patrol and they 
also encountered a suicide bomber that imploded himself on or near the 
applicant’s operating post [resulting in numerous casualties]. He also had to 
speak to the families of the deceased Soldiers [as required by regulation]. 
Counsel states, "Each of these experiences was traumatic for [the Applicant] and 
contributed to his mental health disabilities." [The applicant is the recipient of one 
Bronze Star Medal and the Combat Action Badge.]

     c.  Upon his redeployment, counsel states Army officials failed to administer 
and assess his mental health. By Army policy, he should have completed 
DD Form 2900 (Post-Deployment Health Re-Assessment). If Army officials had 
properly conducted a health assessment, the applicant would have received 
medical referrals to see specialists. Counsel asserts because this health 
assessment was not completed, the applicant’s mental health conditions went 
undiagnosed. Without a proper diagnosis, the applicant did not enter the DES. 
His diagnoses include post-traumatic stress disorder (PTSD), anxiety disorder, 
and major depressive disorder. As he went untreated, his struggles led to marital 
strife and alcohol abuse. For his struggles he received a GOMOR which lead to a 
Board of Inquiry and his elimination from the Army. Counsel provides a timeline – 

*	18 April 2012, he appeared before a Board of Inquiry which recommended 
his elimination from the Army
*	23 October 2012, Army Board of Review for Eliminations convened 
reviewing his record including the results of the Board of Inquiry. This 
board also recommended eliminating him to the DASA (RB). 
*	31 October 2012, the DASA (RB) approved the recommendation of the 
Army Board of Review for Eliminations directing issuance of an Honorable 
Discharge Certificate
*	16 November 2012, he was discharged due to unacceptable conduct
*	Effective 17 November 2012, the DVA provided him with compensation 
benefits for a mental health condition rating of 30 percent
*	In 2014, the ABCMR denied his request to return him to active duty, 
promotion to major, and removal of derogatory information from his official 
record
*	In 2014, he requested reconsideration and the Board denied his request 

4.  In reviewing his official military personnel file and evidence submitted by the 
applicant or counsel that is filed in his previous case files within the Army Review 
Board Agency (ARBA) Case Tracking System, the following facts are known.

     a.  He enlisted in the Regular Army on 9 July 1990 and was honorably 
discharged on 7 September 1994 after 4 years, 1 month, and 29 days of net 
active service in order to enter Reserve Officer Training Corps (ROTC) Program.

     b.  He was the recipient of a 4-year Army ROTC Scholarship. Upon college 
graduation, he was appointed a Reserve Commissioned Officer of the Army 
effective 12 December 1998 and ordered to active duty. He entered active duty 
on 19 March 1999 in order to fulfill his obligated service of 4 years.

     c.  He deployed to Iraq during the following periods: from 7 February 2004 
through 6 February 2005 and from 20 August 2006 through 20 November 2007

     d.  A GOMOR, signed by the Commanding General (a major general), 
U.S. Army Field Artillery Center and Fort Sill, dated 29 January 2009, shows:

          (1)  He was reprimanded for domestic assault and battery for beating, 
choking, and threatening his wife, for ongoing multiple adulterous affairs with 
women including one married to a deployed Soldier, and for conduct unbecoming 
an officer and gentleman.

          (2)  On 16 November 2008, he had a sexual encounter with a woman other 
than his wife which sparked a fight with his wife when she confronted him about 
it. He attacked her by hitting her with his hands then with a plastic baton on her 
face and head to the brink of unconsciousness, leaving her with bruises still 
visible 5 days later. When she fell, he dragged her across the floor, choked her, 
and scratched her on her neck. He verbally threatened her to the point that she 
feared for her life.

          (3)  The applicant told his wife he met the other woman through an online 
website and admitted to the investigating police he engaged in affairs with 
several other women. His wife spoke to one of the other women who revealed his 
other affairs, to include impregnating the wife of a deployed Soldier. He also 
admitted to being the father of twins with one of the women. His behavior was 
repugnant and indicated a lack of judgment in his professional and personal life. 
He failed to lead by example.

          (4)  His reprimand was imposed as an administrative measure and not as 
punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). He 
was to acknowledge the GOMOR and return it with any statements in rebuttal 
within 15 calendar days. A decision on imposing and filing the reprimand would 
be withheld until that time.

     e.  On 2 February 2009 after his psychiatric hospitalization, he acknowledged 
receipt of his GOMOR and indicated he would submit a rebuttal statement. He 
acknowledged he understood he could consult with military legal counsel or 
retain a civilian lawyer at his personal expense. He indicated he would consult 
with counsel. 

     f.  On 5 March 2009, he submitted a GOMOR rebuttal stating in pertinent part 
that he admitted to assaulting his wife and having an affair with a woman who 
was not his wife. After his company command tenure, he felt depressed, was 
easily frustrated, had emotional outbursts of anger, and felt numb. He turned to 
alcohol and had inappropriate conversations with women on line. In behavioral 
health treatment, he learned that his anger (emotional outbursts) was a symptom 
of depression. [His rebuttal statement is summarized in AR20190003089 Record 
of Proceedings and available as evidence to the Board for their review and 
consideration.] 

     g.  The applicant’s battalion commander (lieutenant colonel) reviewed his 
reprimand with supporting evidence. His battalion commander stated, "[The 
applicant’s] behavior is/was absolutely unacceptable for a senior captain. His 
multiple offenses could have easily go to a court-martial." He did state the 
applicant was accomplishing his mission training junior officers (lieutenants). 
However, he did not recommend him for promotion. He concluded by stating, in 
effect, the applicant’s conduct was an embarrassment for the battalion and the 
officer corps. He recommended filing the GOMOR in the applicant’s official 
military personnel file. He forwarded his written recommendation to the next 
commander in the chain of command, the brigade commander. 

     h.  On 14 March 2009 his brigade commander (colonel) also reviewed the 
applicant’s reprimand with supporting evidence. His brigade commander stated 
the applicant deployed multiple times and was being treated for PTSD. He 
indicated the applicant continued with his duties as an instructor and was doing a 
fine job. He also indicated the applicant had rehabilitative potential. 
Notwithstanding his statement that the applicant could be rehabilitated, he 
concluded by stating the applicant’s conduct was unacceptable and he 
recommended filing the GOMOR in the applicant’s official military personnel file.

     i.  On 24 March 2009 at 1330 hours the Chief of Staff (a colonel/pay grade   
O-6) for U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, assumed 
command of the organization under the authority of Army Regulation 600-20 
(Army Command Policy), paragraph 2-8. He assumed command during the 
temporary absence and/or voluntary devolvement (possibly deployment) of the 
regularly assigned commanding general (a major general) and the assistant 
commandant, a brigadier general. He authenticated the memorandum with his 
personal signature. The ending period for his assumption of command was 1020 
hours 27 March 2009.

[Army Regulation 600-20, paragraph 2-5(d) states assumption of 
command will be announced in a memorandum and will include the 
unit, its unit identification code and the effective date or duration of a 
specified period. Paragraph 2-8 states if the commander of a 
headquarters and headquarters element dies, becomes disabled, 
retires, is reassigned, or is temporarily absent, the senior regularly 
assigned United States Army Soldier of the particular headquarters 
and headquarters element who performs duties with the element will 
assume command. The announcement will indicate assumption as 
acting commander within a prescribed time period.] 

     j.  On 26 March 2009, after due consideration of all matters submitted by the 
applicant as well as the recommendations of his chain of command, all of whom 
recommended filing the GOMOR in his official military personnel file, the acting 
commander [with assumption of command memorandum] directed the filing of 
GOMOR in the applicant’s official military personnel file. (In reviewing his 
electronic personnel record, his GOMOR is filed in the performance folder of his 
official military personnel file.)

     k.  He deployed to Iraq for a third combat tour starting on 27 December 2009. 
While in Iraq he received written notification from the U.S. Army Human 
Resources Command on or about 25 May 2010 that he had been identified to 
show cause for retention on active duty because of misconduct, moral, or 
professional dereliction.

     l.  On 16 December 2010 he redeployed to the continental United States.

     m.  On or about 8 April 2011 he reported to Fort Stewart, GA on permanent 
change of station orders. He was assigned to a mechanized unit under the 
leadership of the Commanding General, 3rd Infantry Division and Fort Stewart, 
Fort Stewart, GA. 

     n.  The applicant applied to the Department of Army Suitability Evaluation 
Board (DASEB) requesting removal of his GOMOR from his performance folder 
by transferring it to his restricted folder based on the rationale that his GOMOR 
had served its intended purpose. His DASEB Record of Proceedings, dated 
13 January 2011, states after careful consideration it was determined the 
available evidence did not provide substantial evidence that the GOMOR had 
served its intended purpose and that its transfer (to his restricted file) would be in 
the best interest of the Army. Therefore, the DASEB determined the overall 
merits of the applicant’s case did not warrant the requested relief. His application 
was denied. (The DASEB proceedings are recorded in Army Docket Number 
AR20100026510. These proceedings were included as evidence in Docket 
Number AR20190003089 and are available for the Board’s review. This 
document is also filed in his official military personnel file.)

     o.  On 18 April 2012, a Board of Inquiry convened at Fort Stewart, GA. Among 
the evidence and testimony considered by the Board of Inquiry were the 
testimonies of the applicant and Dr. AP, a medical doctor of psychiatry. After 
deliberations, the Board of Inquiry recommended the applicant be involuntarily 
separated and that he receive an honorable discharge. His Board of Inquiry with 
its associated evidence is filed in his official military personnel file and was 
included as evidence in ABCMR Army Docket AR20190003089. 

          (1)  In Dr. P____’s testimony she stated she was a retired colonel whose 
position was Chief, MEB, Behavioral Health. She was called as a witness for the 
government. It was her duty and responsibility to evaluate, diagnosis, and if 
necessary, treat Soldiers who had behavioral health disorders. She also 
conducted behavioral health assessments for Soldiers deploying into combat 
zones clearing them for deployment if medically qualified under Army regulations. 
It was also her responsibility to ensure behavioral health assessments were 
conducted to standard for fitness for duty determinations, MEBs and chapter 
evaluations. She reviewed the applicant’s electronic service treatment record and 
his behavioral health records. Upon the conclusion of the records review, the 
psychiatrist stated the application did not describe dissociative episodes [from 
combat or combat flashbacks]. He was able to describe what happened step, by 
step in a logical thought process. From his medical records, she was not able to 
identify a traumatic event or a stressor. From his rebuttal statements, he 
identified his stressor as being in company command is a stressful command 
environment. In a disassociate episode, one is not aware of what is going on nor 
do they recall the dissociative event. In his narrative he described his trigger as 
his wife’s slapping him. The psychiatrist stated, in effect, that just because a 
person is exposed to something that is scary or traumatic does not mean it is 
going to lead to a diagnosis of PTSD. She acknowledged that in reviewing his 
behavioral health record a social worker diagnosed the applicant with PTSD. She 
stated in effect that normally a social worker does not make behavioral health 
diagnoses as they do not have the required training. 

          (2)  Among the statements in the applicant’s testimony, he states there 
were things written in the GOMOR that were unsubstantiated. He made 
thousands of mistakes, but he also believes he went on a journey to prove he 
can still serve and learn from his mistakes. If the Board decides to retain him, he 
has a plan for his career to continue and stay in operations and welcomes the 
opportunity to do anything for Soldiers’ resiliency.

          (3)  Given the preponderance of the evidence, the Board of Inquiry 
concluded the applicant did in fact commit adultery and he did in fact have an 
incident of domestic violence in which he assaulted his wife. Therefore, the 
Board of Inquiry found there was sufficient evidence he did commit acts of 
personal misconduct and that there was sufficient evidence to substantiate his 
actions could be considered conduct unbecoming a commissioned officer. [He 
violated UCMJ Article 128 (Assault), Article 134 (Adultery) and Article 133 
(Conduct Unbecoming an Officer and Gentleman).]

     p.  On 23 October 2012, the Army Board of Review for Eliminations convened 
a board, the complete transcript of which is included for the current Board, to 
review the action of the Board of Inquiry which recommended the applicant’s 
elimination. Based on a thorough review of all evidence, the Army Board of 
Review for Eliminations recommended the applicant’s elimination from the 
U.S. Army based on misconduct and moral or professional dereliction, with an 
honorable characterization of service.  

     q.  On 31 October 2012, the DASA (RB) approved the Army Board of Review 
for Eliminations’ recommendation to eliminate the applicant based on misconduct 
and moral or professional dereliction (violations of the UCMJ), with an honorable 
characterization of service.

     r.  Accordingly, Orders Number 307-0025 were issued on 2 November 2012 
by Headquarters, 3rd Infantry Division and Fort Stewart informing the applicant 
his date of discharge would be on 16 November 2012. The authority for his 
discharge was under Army Regulation 600-8-24.

     s.  The applicant’s DD Form 214 (Certificate of Release or Discharge from 
Active Duty) shows he was honorably discharged on 16 November 2012, after 
13 years, 7 months, and 28 days of net active service this period, under the 
provisions of Army Regulation 600-8-24 due to unacceptable conduct. His 
cumulative periods of active service totaled 17 years, 9 months and 27 days. 

     t.  The applicant applied to the ABCMR in April 2014, requesting his discharge 
be voided, reinstatement on active duty, promotion to the rank of major 
retroactive to 1 December 2008, a change in functional area, removal of the 
GOMOR, derogatory officer efficiency reports, and DASEB proceedings from his 
official military personnel file. After careful consideration of all the evidence, the 
Board voted on 7 April 2015 to deny the applicant’s requested relief determining 
the evidence presented did not demonstrate the existence of a probable error or 
injustice.

     u.  In June 2015, the applicant again applied to the ABCMR, requesting 
reconsideration of his prior request, stating the Board previously failed to 
consider his diagnosis of PTSD. Prior to board deliberations, a medical advisory 
was obtained from a licensed clinical psychologist who is a member of the 
Medical Service Corps serving as a commissioned officer. The clinical 
psychologist stated in effect that after a thorough review of available medical 
records his mental health disorders (depression and/or PTSD) did not explain or 
directly mitigate his multiple infractions of misconduct. On 6 December 2016, 
after careful consideration of all evidence, the Board again voted to deny the 
requested relief, determining the evidence presented did not demonstrate the 
existence of a probable error or injustice.

5.  On 1 February 2019 the U.S. Court of Federal Claims ordered the voluntary 
remand of his claim for monetary compensation back to the ABCMR. The court 
order remand for reconsideration was based on his existing record and any 
further evidence that the applicant may submit during the remand in accordance 
with any procedures that the ABCMR may establish for that purpose. He still 
seeks financial compensation based on his request for reinstatement to active 
duty in the rank of major effective on or about 16 November 2012 or disability 
retired pay with a disabling rating of 30 percent and placement on the PDRL 
effective 17 November 2012.

6.  For the members of the ABCMR Board and others concerned with the 
applicant’s case it is necessary to define the Army medical fitness standards 
pertinent to his multiple applications and court remand. Army Regulation 40-501 
(Standards of Medical Fitness) governs medical fitness standards for enlistment, 
induction, appointment, retention, and separation. In chapter 3 of this regulation 
in effect during the applicant’s period of service it gave the various medical 
conditions and physical defects which may render a Soldier unfit for further 
military service and which fall below the standards required for Soldiers to 
continue serving in the U.S. Army.

     a.  Paragraph 3-31 (Disorders with psychotic features) states the causes for 
referral to an MEB include diagnosed psychiatric conditions that fail to respond to 
treatment or restore the Soldier to full function within 1 year of onset of treatment. 
Mental disorders not secondary to intoxication, infections, toxic, or other organic 
causes, with gross impairment in reality testing, resulting in interference with 
social adjustment or with duty performance.  

     b.  Paragraph 3-32 (Mood disorders) the causes for referral to an MEB include 
persistent or recurrence of symptoms sufficient to require extended or recurrent 
hospitalization, limitations of duty or duty in a protected environment or interfering 
with effective military performance.

     c.  Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes 
for referral to an MEB include persistent or recurrence of symptoms requiring 
extended or recurrent hospitalization, limitations of duty or duty in a protected 
environment or interfering with effective military performance.

7.  On 20 November 2020 the ABCMR convened to reconsider ABCMR Docket 
Number AR20140008998 which had convened on 7 April 2015 and ABCMR 
Docket Number AR20150012081 which had convened on 6 December 2016. 
These two boards denied his multiple requests for relief. In ABCMR Docket 
Number AR20190003089, the Board restated the applicant’s multiple requests as 
follows:

*	consideration of his mental health conditions before a MEB and PEB for 
placement on the TDRL or PDRL
*	if not placed on the TDRL or PDRL, reinstatement on active duty 
*	if reinstated on active duty, removal from his records of a GOMOR and 
two referred DA Forms 67-9 (Officer Evaluation Report (OER)) and 
retroactive consideration for promotion on the Fiscal Year 2008 Major 
Promotion Board

     a.  In support of his previous application to the ABCMR he provided 
handwritten notes from Dr. M____ Marks Psychiatry & Forensic Services, dated 
30 April 2012 and 17 May 2012 showing:

          (1)  He had a history of major depression which was in remission, a history 
of alcohol abuse, not current, and possible dysthymia [persistent depressive 
disorder].

          (2)  He witnessed what he determined were senseless deaths during his 
combat tours. He underwent permanent change of station relocations and he 
was bothered by his supervisor(s) who wouldn’t make time to talk to him. He felt 
misunderstood and perceived himself as just a number, a statistic, in the Army. 
He didn’t feel appreciated and from his perspective he received no mentorship.

          (3)  His current state was general discontentment with work-related issues. 
It was not clear if he had PTSD in the past and it was not a current issue. The 
medical narrative concluded with a statement that no follow-up medical treatment 
was required and that he could return as needed.

     b.  An undated VA Rating Decision shows he was granted a service-
connected disability for the following conditions effective 17 November 2012, the 
first day after his date of discharge [which is authorized by law]:

*	hypertension with cardiomegaly, rating 30 percent
*	anxiety disorder not otherwise specified (NOS) and major depressive 
disorder, rating 30 percent
*	right elbow strain, rating 10 percent
*	degenerative arthritis, left knee, rating 10 percent
*	degenerative arthritis, right knee, rating 10 percent
*	dermatitis and pseudofolliculitis barbae, rating 10 percent
*	degenerative arthritis, left shoulder, ring finger tendon injury status post 
avulsion fracture, left hand, proximal interphalangeal fracture, middle 
finger right hand, healed fifth metacarpal fracture, left hand, left ankle, 
calcaneal spur, and burn scar right arm, all rated 0 percent

     c.  A DVA Psychiatry Outpatient Note, dated 8 January 2013, shows:

*	he was seen in follow-up treatment for PTSD at a VA Medical Center
*	this brief psychotherapy session included reevaluation and 
management of medication
*	current status was he did have some PTSD symptoms from his three 
combat tours in Iraq; not presently suicidal or on medication
*	he was alert, articulate, appropriate and properly oriented
*	his mood was anxious
*	his judgment was intact 
*	the PTSD symptoms he experiences are scarcely unusual for someone 
exposed to combat and did not make him unstable in any way and are 
more of a mild occasional discomfort
*	he was fully competent from a security clearance point of view

     d.  A VA letter dated 4 February 2015 indicated that a service connection for 
anxiety disorder NOS with major depressive disorder was granted by the VA and he 
was assigned a disability rating of 30 percent effective 17 November 2012. A 
medical note dated 8 January 2013 indicated the applicant had a diagnosis of 
PTSD by a VA psychiatrist. The provider included an opine that the applicant 
endorsed scarcely unusual PTSD symptoms for someone exposed to combat and 
determined the symptoms had not made him unstable in any way and that they 
were more a matter of mild occasional discomfort.

     e.  In the processing of ABCMR Docket Number AR20190003089, multiple 
medical advisories were obtained from Department of Army and concurrently state 
licensed medical doctor(s), psychiatrist, and clinical psychologist. Each qualified 
medical provider was assigned to the Army Review Boards Agency (ARBA) as a 
medical staff officer providing support to the ABCMR and DASA (RB). 

          (1)  On 11 October 2016, the ARBA clinical psychologist stated the 
applicant’s diagnoses of depression or PTSD did not mitigate his misconduct. 
Depression or PTSD is not reasonably related to misconduct of domestic 
violence and engaging in adultery. There is no evidence showing he was not 
responsible for his decisions and actions, or that he was considered 
psychologically unfit for duty (under Army Regulation 40-501). There is also no 
evidence supporting his contention that if he had been properly treated for severe 
depression, he would not have committed his various acts of misconduct. He was 
provided with a copy of this specific medical advisory. He did not respond. 

          (2)  On 10 April 2019, another advisory was obtained from the ARBA 
clinical psychologist. In his application he had contended that if he had been 
properly diagnosed and treated, he would still be on active duty. He contends his 
proper diagnosis is PTSD. In reviewing his service treatment records he was 
seen, diagnosed and treated for alcohol abuse, an adjustment disorder with 
anxiety and depressed mood, depression and PTSD. He had self-referred 
himself for his alcohol abuse. The psychologist reviewed his hospital discharge 
summary from Red River Mental Hospital and his privately employed civilian 
psychiatrist. The clinical psychologist stated the applicant’s basis for separation 
was due to unacceptable conduct and not because he had a misdiagnosis of 
PTSD or severe depression. The applicant and counsel were provided with a 
copy of this medical advisory.

          (3)  The applicant responded on 30 April 2019 restating his intent in filing 
his application was to have his records reviewed by a MEB/PEB who he believed 
were the experts who could ascertain the complexity of his case. He submitted a 
second rebuttal on 26 May 2020 with the support of counsel and new evidence 
not previously considered by the Board. His civilian psychiatrist, a forensic 
psychiatrist, stated with certainty the applicant was suffering from major 
depression after his second deployment. She opined that irritability and 
emotional volatility are symptoms of depression that can result in aggressive 
behaviors. 

          (4)  Counsel’s rebuttal statement dated 26 May 2020 immediately 
discredits the qualifications of the Department of Army employed clinical 
psychologist. He opines the Army failed to investigative the circumstances of the 
applicant’s behavioral health conditions and also failed to properly diagnose him. 
He stated in effect that the Army determined the applicant’s conduct was criminal 
in nature, but never investigated how the applicant’s behavioral health directly 
impacted his conduct that eventually led to his separation. He surmises the 
applicant’s chain of command ignored his behavioral health conditions by not 
directing he undergo a MEB that would evaluate him for fitness for duty. He also 
opines the applicant had difficulty continuing with his duties. As evidence to 
support his contention, he utilized the forensic evaluation conducted by a civilian 
psychiatrist who, in her opinion dated in April 2012, concluded the applicant 
suffered from major depression and that his major depression is directly related 
to his misconduct in 2008. 

          (5)  With new evidence submitted by the applicant and counsel, a third 
advisory was obtained from the ARBA clinical psychologist dated 19 June 2020. 
The ARBA clinical psychologist noted the forensic psychiatrist had access to 
service treatment records provided by the applicant and his counsel. ARBA 
medical staff have access to his complete electronic service treatment records 
and his electronic military personnel records including the ability to review and 
ascertain his ability to perform his assigned duties by reviewing his officer 
efficiency reports, military academic records, awards, military investigative files 
and favorable or unfavorable documents filed in his record. The forensic 
psychiatrist did not have access to those records. The ARBA clinical psychologist 
provided a summary of the applicant’s military service and medical treatment. 
The Army psychologist stated that after he received his GOMOR and referred 
officer evaluation report attributed to his misconduct, his performance evaluations 
were commendable with his raters and senior raters recommending him for 
advanced military schooling, promotion and battalion command. He did undergo 
a post-deployment behavioral health screening in June 2011 wherein he denied 
any difficulties related to his third deployment. After summarizing his personnel 
and service treatment records, the ARBA clinical psychologist concluded the 
applicant did not have a behavioral health condition that failed medical retention 
standards of Army Regulation 40-501. Therefore, the clinical psychologist opined 
to the ABCMR that his record should not undergo MEB/PEB evaluations or 
medical board proceedings. 

          (6)  In turn, the applicant and counsel received the 19 June 2020 medical 
advisory for their review and rebuttal. They responded with a narrative review of 
the medical advisory and new evidence. Counsel opines the Army erred when it 
did not refer the applicant to Walter Reed Army Medical Center for a psychiatric 
evaluation. He further asserts that the applicant’s chain of command held a bias 
toward him including interfering with his behavioral health treatment. He alludes 
to errors made by the AR 15-6 Investigating Officer and because of the errors, 
witnesses were not properly interviewed nor was evidence obtained that would 
have discredited the woman whom his spouse claimed was the adulterer.  

          (7)  The applicant responded separately to the 19 June 2020 medical 
advisory stating in effect it is illogical to conclude that his adjustment disorder 
diminished his misconduct. He refuted the ARBA clinical psychologist opinion 
that his civilian forensic psychiatrist did not have access to his military personnel 
record and the various reports used by his chain of command to discredit him. He 
provided his civilian forensic psychiatrist with documents including the civilian 
police reports, Army 15-6 Investigative Report and Findings, sworn statements, 
GOMOR, Board of Inquiry and officer evaluation reports. He found the ARBA 
clinical psychologist assessment misleading because in reviewing his behavioral 
health service treatment records the medical providers summarized his answers 
to their questions. After repeated appointments wherein he was asked the same 
general questions, he started to mask his depression. In his rebuttal he 
articulated in detail the faults he found within the Army advisory. He ended his 
narrative rebuttal by stating in effect he found the Army advisory baseless 
because his chain of command interfered with his medical treatment. He has 
provided civilian forensic psychiatric evaluations which numerous administrative 
boards have ignored because his civilian medical records are not filed in his 
service treatment records. As the numerous administrative boards failed to take 
into consideration his civilian medical records, he filed his claim in Federal court. 
He asserts the only time he was allowed to focus on his problems related to his 
combat experiences was when he was isolated at the civilian psychiatric hospital. 
At that facility he received a diagnosis of major depressive disorder directly 
related to his combat exposures. He was on active duty at the time. In effect, he 
states this civilian psychiatric report and his diagnosis of major depressive 
disorder should be weighed against his service treatment records showing he 
received medical treatment in small increments of time with changing diagnoses.   

8.  On 20 November 2020 the ABCMR met denying the applicant the relief 
(compensation) he requested through the Federal court. The Record of 
Proceedings for ABCMR Army Docket Number AR20190003089 is a 44-page 
document. The ABCMR determined by unanimous vote that the greater weight of 
evidence reflects the fact the applicant met medical retention standards of Army 
Regulation 40-501 at the time of his discharge on 16 November 2012. The Board 
found no error in the issuance of his GOMOR and referred officer evaluation 
reports that were issued for his acts of domestic assault and adultery. The Board 
did acknowledge his multiple behavioral health diagnoses. However, the 
applicant did not demonstrate by a preponderance of evidence that his 
underlying mental health conditions were mitigating factors for his misconduct of 
domestic assault and adultery. 

9.  On 20 August 2021 the United States Government filed a motion for voluntary 
remand back to the ABCMR. The United States Court of Federal Claims 
remanded the applicant’s claim back to the ABCMR to reconsider the applicant’s 
amended complaint wherein he still seeks financial compensation from the 
Department of the Army through reinstatement to active duty and payment of 
arrears and allowances or effective the day following his separation his 
entitlement to retired pay based on a 30 percent disabling rating issued by the 
DVA. As the applicant seeks financial compensation, he appealed previous 
ABCMR administrative denial decisions to the Federal claims court. In pertinent 
part, counsel claims the Department of the Army failed to properly process his 
reprimand resulting in the improper convening of a separation board. 

10.  The administrative processing of his GOMOR was previously discussed 
within this Record of Proceedings showing a colonel with the appropriate 
authority ordered the filing of the GOMOR in the applicant’s military personnel 
record. Additionally, the processing of his administrative separation was outlined 
and discussed in previous ABCMR Record of Proceedings and this Record of 
Proceedings. Henceforth, this Record of Proceedings will address counsel’s 
second claim that the applicant should have undergone "dual processing" 
through the disability evaluation system and administrative separation processing 
for misconduct with the outcome being placement on the TDRL or PDRL with 
payment of retired pay effective 17 November 2012. 

11.  Counsel claimed the applicant did not undergo post deployment health 
assessments as required by Army policy. If the Army had complied with the 
requirement to assess the applicant’s health, he would have received the medical 
referrals necessary to ensure he was properly diagnosed. As the required 
assessments were not completed, he went undiagnosed thus the Army failed to 
enter him into the DES. Counsel states the applicant’s diagnoses include PTSD, 
anxiety disorder, and major depressive disorder. 

12.  In coordination with the ARBA Senior Medical Advisor, a Medical Corps 
Officer in the rank of colonel and a medical doctor, medical health assessment 
data for the applicant was obtained from his service treatment records and 
provided to the Board. The medical health assessments are filed within his 
electronic service treatment record. 

     a.  On 5 February 2005 the applicant completed a Post Deployment Health 
Assessment under the DD Form 2796 version in effect in April 2003. (This was a 
manual form authorized for filing in the paper service treatment record.)

     b.  On 22 October 2007 he completed another Post Deployment Health 
Assessment again using DD Form 2796 in effect as of April 2003. 

     c.  On 24 November 2007 he completed another Post Deployment Health 
Assessment using the form in effect as of April 2003.

     d.  On 2 April 2008 he completed DD Form 2900 (Post Deployment Health 
Reassessment) utilizing the electronic form in effect as of January 2008.

     e.  On 12 October 2010 he electronically completed DD Form 2796, the 
version effective 4 September 2007 (Draft). He stated he arrived in Iraq on 
17 December 2009 and he departed from Iraq on 12 November 2010. He 
supported Operation Iraqi Freedom serving as part of a military transition team 
with Iraqi armed forces. At the time he electronically completed this form he had 
not redeployed to the continental United States.

          (1)  Question 4: "During the past 4 weeks, how difficult have emotional 
problems (such as feeling depressed or anxious) made it for you to do your work, 
take care of things at home, or get along with other people?" He responded, "Not 
difficult at all."

          (2)  Question 7: "Were you wounded, injured, assaulted or otherwise hurt 
during this deployment?" He responded, "No."

          (3)  Question 9.a. "During this deployment, did you experience any of the 
following events?" The events include a blast or explosion, vehicular accident or 
crash, fragmentary wounds or a bullet wound above his shoulders, a fall or other 
event.  He responded, "Yes" that he jammed his finger. 

          (4)  Question 10: "Did you encounter dead bodies or see people killed or 
wounded during this deployment?" He responded, "No."

          (5)  Question 11: "Were you engaged in direct combat where you 
discharged a weapon?” He responded, "No."

          (6)  Question 12: "During this deployment, did you ever feel that you were 
in great danger of being killed?" He responded, "No."

          (7)  Question 13: "Have you ever had any experience that was so 
frightening, horrible, or upsetting that, IN THE PAST MONTH, you…"

          (a)  Question 13.a: "Have had nightmares about it or thought about it when 
you did not want to?" He responded, "No."

          (b)  Question 13.b: "Tried hard not to think about it or went out of your way 
to avoid situations that remind you of it?" He responded, "No."

          (c)  Question 13.c: "Were constantly on guard, watchful, or easily startled?" 
He responded, "No."

          (d)  Question 13.d: "Felt numb or detached from others, activities, or your 
surroundings?" He responded, "No." 

          (8)  Question 14: "Over the PAST MONTH, have you been bothered by the 
following problems?" 

          (a)  Question 14.a: "Little interest or please in doing things[?]" He 
responded, "Few or several days"

          (b)  Question 14.b: "Feeling down, depressed, or hopeless[?]" He 
responded, "Few or several days"

          (9)  Question 24: "Would you like to schedule a visit with a healthcare 
provider to further discuss your health concern(s)?" He responded, "No."

          (10)  Question 25: "Are you currently interested in receiving information or 
assistance for a stress, emotional or alcohol concern?" He responded, "No."

          (11)  Question 26: "Are you currently interested in receiving assistance for 
a family or relationship concern?" He responded, "No."

          (12)  Question 27: "Would you like to schedule a visit with a chaplain or 
community support counselor?" He responded, "No." 

     f.  On 12 October 2010 a health care provider conducted an assessment with 
the applicant who indicated the applicant did not have a current physical profile 
or limited duty restrictions. DD Form 2796 records the assessment as follows:

          (1)  Question 3a: "Over the PAST MONTH, have you been bothered by 
thoughts that you would be better off dead or of hurting yourself in some way?" 
He responded, "No."

          (2)  Question 3b: "Over the PAST MONTH, have our had thoughts or 
concerns that you might hurt or lose control with someone?" He responded, "No."

          (3)  Question 6: "During this deployment have you sought, or do you now 
intend to seek, counseling or care for your mental health?" He responded, "No."

          (4)  Question 12: Referral Information. The health care provider conducting 
the applicant’s post deployment health care assessment indicated there were no 
referrals for follow-up medical or behavioral health treatment were made on 
12 October 2010. 

          (5)  Question 13: "Comments:" The health care provider noted the 
applicant had bilateral knee pain from riding in Humvees and that he was taking 
Glucosamine that he ordered off the internet. The applicant stated by taking 
Glucosamine his bilateral knee pain had decreased. 

     g.  On 7 December 2010 he electronically completed another DD Form 2796, 
the version effective January 2008. He restated he arrived in Iraq on 
17 December 2009 and he departed from Iraq on 12 November 2010. He 
supported Operation Iraqi Freedom serving as part of a military transition team 
with Iraqi armed forces. He indicated his health was good during the month since 
his redeployment. 

          (1)  Question 4: "During the past 4 weeks, how difficult have emotional 
problems (such as feeling depressed or anxious) made it for you to do your work, 
take care of things at home, or get along with other people?" He responded, "Not 
difficult at all."

          (2)  Question 24: "Would you like to schedule a visit with a healthcare 
provider to further discuss your health concern(s)?" He previously responded no 
on 12 October 2010 and his latest response was "No."

          (3)  Question 25: "Are you currently interested in receiving information or 
assistance for a stress, emotional or alcohol concern?" He previously responded 
no on 12 October 2010 and his latest response was "No."

          (4)  Question 26: "Are you currently interested in receiving assistance for a 
family or relationship concern?" He previously responded no on 12 October 2010 
and his latest response was "No."

          (5)  Question 27: "Would you like to schedule a visit with a chaplain or 
community support counselor?" He previously responded no on 12 October 2010 
and his latest response was "No." 

          (6)  A health care provider conducted a review and assessment indicating 
the applicant did not have a physical profile or limited duty restrictions. The 
applicant did not indicate he had any health issues, medical or behavioral health, 
that he wanted to discuss with a health care provider. The health care provider 
conducting the assessment did not provide the applicant with any referrals to see 
specialists as none were required. 

     h.  On 12 April 2011, he electronically completed his DD Form 2900 (Post 
Deployment Health Re-Assessment (PDHRA). On this form he stated he arrived 
in theater on 17 December 2009, but changed his date of departure from Iraq to 
4 December 2010. In earlier health assessments pertaining to his third 
deployment he indicated he redeployed out of Iraq on 12 November 2010. He 
continued stating he had no difficulties concerning emotional problems 
(depression or anxiety), taking care of things at home, or getting along with other 
people. He did state he had concerns with his physical health regarding diarrhea, 
vomiting or frequent indigestion or heartburn. He indicated he did not have 
serious conflicts with his spouse, close friends, family members or work that were 
causing him concern or worry. As previously disclosed in earlier health 
assessments, he did not want to schedule appointment(s) with health care 
providers nor did he want help with behavioral health issues including his use of 
alcohol. Upon review and an interview by a health care provider, the health care 
provider found no behavioral health risk concerns, no evidence of alcohol-related 
problems and made no referrals for the applicant to see medical specialists. The 
applicant also indicated he had no health concerns. 

13.  He provided excerpts from his service treatment records and his civilian 
hospitalization discharge summary. In reviewing the excerpts that he provided in 
previous administrative applications and his initial court remand evidence, he 
received behavioral health treatment for alcohol abuse, an adjustment disorder 
with anxiety, depressed mood, and depression prior to his third deployment to 
Iraq. The applicant engaged in several behavioral health services to include 
Psychology and Social Work individual and group treatments, medication 
management through Psychiatry, outpatient and inpatient services, Family 
Advocacy, Army Substance Abuse Program, and off-post counseling. It appears 
he was evaluated thoroughly, actively engaged in treatment, and endorsed 
symptoms appropriate to the given diagnoses for each treatment session. For the 
Board’s consideration, his service treatment records filed in his multiple 
administrative proceedings contain the following pertinent information.  

     a.  A Standard Form 600, dated 18 August 2008, shows he was accompanied 
by his wife as a walk-in patient to the Mental Health Clinic at Reynolds Army 
Community Hospital (RACH). He and his wife reported he had increased his 
alcohol consumption since his return from his second Iraq deployment. He also 
reported depressive symptoms, irritability, uncomfortableness in crowds, lack of 
motivation, impatience, fatigue, problems relaxing, and erectile dysfunction. He 
stated he wanted to get help several months ago but never followed through and 
his wife told him on the day of the visit that she would go to his commander and 
tell him about her husband’s problems if he did not go to the mental health clinic.

     b.  On 18 August 2008 he appeared in no acute distress and denied 
suicidal/homicidal ideations (SI/HI), or psychotic symptoms. His wife related he 
mentioned wanting to kill himself and that when he drinks he would say things 
like "Where’s the gun – I’ll blow my brains out right now." Risk issues appears 
minimal to moderate at the time. The notes indicate a case would be started with 
Dr. D____ to rule out depressive disorder, NOS and alcohol abuse. The applicant 
may benefit from medications and he was amendable to taking them, but was not 
amenable to group therapy and would prefer one on one therapy for post-
deployment related issues. He and his wife indicated an interest in marital 
counseling and might need referral to Social Work Services. They were advised 
to schedule follow up appointments as needed. The assessment and plan lists 
alcohol abuse and one individual psychiatric therapy approximately 45-50 
minutes in duration. The applicant was released without limitations for follow-up 
as needed. The applicant agreed to go to the Army Substance Abuse Program 
(ASAP) and set up an appointment for intake.

     c.  On 21 November 2008 he was seen as a walk-in referral ordered by his 
commander for a domestic violence incident that occurred on or about 
20 November 2008. He reported that he and his wife were separated and living in 
separate homes. He reported he was irritable, struggling to define a sense of 
purpose in his life and felt hostile toward authority figures. He denied SI/HI and 
reported no abnormal thoughts. His diagnoses included partner relational 
problems, adjustment disorder with depressed mood and episodic alcohol abuse. 
The clinical social worker conducting his interview indicated the applicant 
displayed no remorse for his actions including his history of infidelity. He was 
released without limitations and told to follow-up in 1 week. 

     d.  On12 December 2008 he saw a medical doctor at the post mental health 
clinic. The reason for this medical appointment was a follow-up to previous 
appointments regarding his diagnosis of adjustment disorder with depressed 
mood. He reported decreased use of alcohol. This provider determined his visit 
was GWOT related and he served as a company commander during one tour in 
Iraq. He reported feelings of loneliness, depression, sleep disturbance, 
anhedonia, and apathy. No SI/HI thoughts or plans. He discussed his duties in 
Iraq including to loss of Soldiers, multiple changes in duties/missions, chaos and 
difficulty adjusting to a noncombat environment after redeployment. He self-
reported his extra-marital affair of 3 months had ended and he was ready to work 
on his marriage. He was under investigation for conduct unbecoming an officer, 
adultery and assault. The civilian police were also involved because the incident 
occurred off post. He reported he would attend a Post Deployment Clinic and 
undergo continued assessment for medication management to reduce his 
depression and increase his sleep. His diagnoses remained partner relational 
problems, adjustment disorder with depressed mood and episodic alcohol abuse. 
He was released without duty limitations.  

     e.  A Standard Form 600, dated 14 February 2009, shows:

          (1)  He was seen at the post emergency room after he was brought in for 
attempting to hang himself in his garage. He became more depressed over the 
past 2 weeks, subsequent to receiving a GOMOR and being placed on Zoloft. 
His hope for the future started to decline after the GOMOR, being perceived by 
others as a substandard Soldier, being potentially forced out of the military, and 
the no contact order following a domestic dispute which kept him from talking to 
his wife.

          (2)  On 12 February 2009, he bought a rope from Walmart and went to the 
garage of his wife’s house, tying the rope around a steel beam. He got up on a 
table preparing to jump, but in the final moments of contemplating hanging 
himself, he worried he might go to hell and decided against it, instead calling his 
parents then eventually texting his wife that he had been at the house preparing 
to hang himself. His wife called his unit and the unit contacted the applicant, 
bringing him to the emergency room.

          (3)  He was deemed to be at high risk for harming himself in the imminent 
future, as his military career was likely coming to an end and depression and 
alcohol consumption make his likelihood of acting quite high. Toward that end, 
the applicant agreed to go to Red River Psychiatric Hospital, a civilian hospital, 
versus receiving an emergency order of detention to the local hospital, which his 
medical doctor stated he would do if needed to ensure the applicant’s safety. The 
attending physician’s primary diagnosis was depression. The attending physician 
spoke with the applicant’s battalion commander, the emergency room medical 
doctor and the intake staff working at Red River Psychiatric Hospital. Subsequent 
to these discussions, the Red River Psychiatric Hospital accepted the applicant 
for in-patient treatment. Prior to his release from the emergency room, the 
applicant was told to follow up with the post mental health clinic upon discharge 
from the hospital.
     f.  A Red River Hospital Discharge Summary, shows:

          (1)  He was admitted to the hospital’s adult inpatient program on 
14 February 2009 after trying to hang himself and given admission diagnoses of 
major depressive disorder, recurrent, and severe addiction.

          (2)  After being charged with adultery and separated from his wife, he 
became increasingly depressed. He felt depressed with a depressed mood, 
irritability, poor concentration, poor sleep, isolation, helplessness, and thoughts 
of suicide. His memory was intact; his mood depressed; his affect dysphoric 
(general unease or dissatisfaction). His thought process was well organized and 
he recognized the need for treatment.

          (3)  His treatment plan included individual and group therapy and 
medication management. He worked on mood improvement skills and ways to 
decrease anxiety and improve his mood. He worked on building strength and 
motivation within himself and worked on relaxation techniques and 
communication skills. Treatment went well and he was improving his 
communication and healthy ways to cope with his emotions and self-
empowerment. Overall he was doing well and tolerated medications without any 
side effect. His mood and affect improved. Thus, he was responding favorably to 
medical treatment. 

          (4)  His discharge diagnosis was major depressive disorder, recurrent and 
severe. He was discharged from the hospital on 24 February 2009 with 
prescriptions for daily Zoloft and Ambien at bedtime for sleep. He was discharged 
in stable condition with no SI/HI. His discharge plan was to follow up with the Fort 
Sill Community Mental Health immediately upon arrival at base. 

     g.  His service treatment record shows he followed up at the post mental 
health clinic on his date of discharge on 24 February 2009. The reason for this 
medical visit was for post-deployment symptoms related to anger and 
depression. He was seen in the Post Deployment Clinic, part of the Mental 
Health Clinic. His mental health medical providers noted he was being seen in 
the Post Deployment Clinic after his second combat deployment to Iraq. Each 
behavioral health appointment is shown as a medical visit related to Global War 
on Terror. His SF 600 shows his diagnosis was PTSD. He reported continued 
improvement which was observed by the mental health provider. He did not 
report sleep problems, his energy level was normal and he had no suicidal or 
homicidal thoughts. He did not demonstrate he had abnormal thought processes.  

     h.  His records contain numerous Standard Forms 600 dated between 
5 March 2009 and 1 May 2009, which are provided in full to the Board for review 
and show:

*	multiple visits to the Psychiatry Clinic for medication refills of Zoloft and 
Ambien and individual/group therapy wherein his depression was 
identified as mild
*	among his listed problems were dysthymic disorder (depressive neurosis), 
alcohol abuse in remission, adjustment disorder with depressed mood, 
anxiety disorder NOS, anger/depression, alienation
*	his mental status exams were all normal
*	he was evaluated as being low risk for dangerousness or impulsivity post 
hospitalization
*	he was always released from his appointments without limitations and 
returned to duty [He had no physical or psychiatric medical profiles.] 

          (1)  On 5 March 2009, he was seen by a licensed clinical social worker for 
ongoing risk assessment after his hospitalization in February. He was enrolled in 
ASAP. The applicant’s diagnosis was dysthymic disorder (depressive neurosis). 
He should have started outpatient therapy at Red River Hospital. The hospital 
had called the post mental health clinic for assistance with coordinating the 
applicant’s medical care. During the session, he discussed his feelings of 
humiliation because of his violations of the UCMJ. He described all his positive 
accomplishments in his military career. His mood was depressed and his affect 
was congruent with his mood. His attention, concentration and judgment were 
good. His language was normal in regards to rate, tone and flow. He denied 
SI/HI. The medical provider stated, "At the current time this patient is considered 
fully competent to be discharged to his own custody." He was considered a high 
risk patient due to mental health protocols. He was instructed to follow up with his 
psychologist. 

          (2)  On 6 March 2009, he was seen by a clinical psychologist with a 
doctorate in psychology. The medical encounter was GWOT (Global War on 
Terrorism) related. He appeared to have mild anxiety and mild depression. He 
was concerned because he was pending disciplinary actions regarding domestic 
assault. He also discussed his lack of contact with his wife and his efforts to 
overcome racial prejudice in life. He had no SI/HI. He said he felt good because 
he was able to compose and submit a rebuttal to his disciplinary action. He had a 
realistic attitude. The clinical psychologist diagnosed him with adjustment 
disorder with depressed mood. He was released without limitations.

          (3)  On 27 March 2009, his medical provider recorded the following filing it 
on an SF 600, “He states that he feels he is prepared and will be able to handle 
the decision regardless of which way it goes. . Service member states he also 
has noted that his use of caffeine tends to increase his anxiety and tension 
level… He states that he’s noticed that doing [war game exercises] his anxiety 
level increases and he reverts back to the type of behaviors he used in a combat 
situation in Iraq." The medical provider states, "By all indications service member 
is coping adequately with his situation at this time. He is undergoing a period of 
intense self-examination and reevaluation of his life and goals…Risk is felt to be 
low at this time." He was released without limitations (no profile/duty restrictions). 

          (4)  Also on 27 March 2009 he attended a Post Deployment Stress Class 
for his symptoms of anger/depression.  

          (5)  On 30 March 2009 he had a follow-on appointment at the Mental 
Health Clinic related to his overseas service in support of the GWOT. His medical 
provider stated he had voiced no complaints at this appointment. He did not 
complain or identify sleep problems. His energy level was normal. He indicated 
he did not have suicide or homicide plans to harm himself or others. He further 
stated he had no abnormal thoughts. He did relate he had significant stress 
during his recent deployment. He was a headquarters and headquarters battery 
commander and often encountered high stress situations. His unit was involved 
in diverse nation building type missions and were under pressure from exposure 
to active combat situations. After he redeployed, he started to use alcohol as a 
form of coping with his personal and situational stress. Upon examination the 
medical provider stated the applicant was not disoriented, he had no perceptual 
disturbances and demonstrated an adequate fund of acknowledge. He was 
released without duty or profile limitations or restrictions. 

          (6)  On 2 April 2009 he had a routine follow-up mental health appointment. 
His behavioral health medical provider stated the applicant was coping with post 
combat symptoms and his pending disciplinary actions. This medical 
appointment was GWOT related. He reported he was having difficulty returning 
to and adjusting to life in the United States and with his family. He expressed his 
feelings of being disconnected from his wife. His behavioral health provider 
stated the applicant did not demonstrate abnormal behaviors, had no sleep 
complaints, no suicide plans, no abnormal thoughts. He did acknowledge he had 
difficulty communicating damaging his interpersonal relationships and that he 
continued to have marital problems. On this specific date the medical provider 
indicated the applicant had PTSD with occupational and financial problems. 
Upon conclusion of the appointment, the medical provider released the applicant 
without imposing any duty or profile restrictions. 

          (7)  On 3 April 2009, he returned to the mental health clinic for a follow-up 
appointment wherein he stated he had no complaints. The benefits of journaling 
were discussed. Again, his medical provider noted the applicant was not 
disoriented, his affect was full-ranging, no disorientation, no perceptual 
disturbances, and no psychomotor abnormalities. His thought process was not 
impaired and he was not suicidal or homicidal. His medical provider stated, 
"Service member continues to report and display improvement." His diagnosis 
remained PTSD and the purpose of this medical appointment was for his post-
deployment examination. He again was released without duty limitations. 

          (8)  On 7 April and 8 April 2009, he returned to the Post Deployment Clinic 
for a post-deployment psychiatric examination based on his post-deployment 
symptoms of anger and depression. His diagnosis was adjusted from PTSD to 
adjustment disorder with anxiety and depressed mood. There were no noted 
abnormalities with his affect, speech, attention, concentration and judgment. He 
had no psychotic processes. His Global Assessment of Functioning (GAF) Scale 
with 100 being the highest shows his GAF score was 75. (A GAF of 75 is defined 
as mild symptoms including understandable reactions to psychosocial stressor or 
only slight impairment present in social and occupational functioning.) His 
therapy session was group therapy wherein the focus was on The Anger 
Continuum with emphasis on self-control and the belief that one’s thinking can 
control feelings. He was released without duty or profile limitations.  

     i.  On 26 August 2009 a social worker at the post mental health clinic changed 
the applicant’s diagnosis to chronic PTSD. There is no explanation on the 
electronic SF 600 as to why the diagnosis of chronic PTSD was added by the 
social worker. There is no affirmation from a medical doctor or a clinical 
psychologist holding a doctorate to affirm or confirm this adjusted diagnosis. The 
social worker released the applicant without limitations. 

     j.  On 21 September 2009 a clinical psychologist interviewed the applicant in 
compliance with a new Army directive wherein Soldiers were to be cleared to 
leave post by a behavioral health professional before departing on permanent 
change of station orders. This visit was administrative in nature. The psychologist 
noted the applicant was seen at the mental health clinic starting in August 2008. 
A review of a medical doctor’s notes shows the applicant was doing well and was 
not a SI/HI risk. He also had services through Family Advocacy and Social Work 
and the ASAP. He was cleared by the psychologist for deployment and/or 
permanent change of station. The psychologist further determined there was no 
medical requirement to transfer the applicant to the Warrior Transition Unit or a 
requirement for him to undergo an MEB.  

     k.  A SF 600 shows on 12 April 2011 he sought information after a post-
deployment screening for behavioral health. He was seen by a social worker at 
the post social work clinic. At the time he was not taking prescribed medication 
for any mental health disorders or diagnoses. He self-reported he was last seen 
in 2009 for adjustment related issues. He reported completing ASAP and Family 
Advocating Program in 2009. He did not report any concerns and was released 
without duty limitations. 

     l.  A SF 600 shows on 2 June 2011 he sought a psychiatric consultation to 
reestablish care because he was undergoing administrative separation and was 
under significant stress. No diagnosis was provided during this administrative 
appointment.  

12.  Through a court ordered remand, the applicant with counsel submitted a 
financial claim with potential payment by the United States Government in 
excess of $10,000. The applicant through multiple applications to the ABCMR 
and now through his second court remand seeks correction to his record to show 
he was retained on active duty and promoted to major effective on an unknown 
date in 2008 by removing derogatory information from his official military 
personnel file. By correcting his record to show his retention on active duty, it 
would allow him to qualify for Regular Army retirement benefits at 20 years of 
active service. In the alternative, he argues he had a mental health diagnosis that 
went undiagnosed preventing him from entering the disability evaluation system. 
If he had been properly diagnosed, he would have undergone a MEB/PEB and 
allowed to medically retire [based on the presumption the PEB would rate his 
anxiety disorder NOS and major depressive disorder at 30 percent disabling]. 

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. After 
reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that the applicant failed to demonstrate 
by a preponderance of evidence an error or injustice warranting the requested 
relief. The applicant’s contentions, the military record, and regulatory guidance 
were carefully considered. The Board also considered the previous decisions in 
this case, the 20 August 2021 remand order issued by the United States Court of 
Federal Claims, and the applicant’s filings in the same Court. 

	a.  The Board determined that the applicant failed to show the GOMOR 
applicant received was unlawfully filed in his permanent file. The Colonel who 
directed the filing temporarily assumed command pursuant to a memorandum 
included with the filing decision. The applicant failed to show by a preponderance 
of the evidence either that the assumption of command memorandum was 
improper or that the alleged lack of authority was more than harmless error. The 
Board noted that the applicant’s chain of command recommended filing the 
GOMOR in his permanent file due to his unacceptable behavior. The Board also 
noted that subsequent Army administrative boards separated him based on 
evidence of the underlying misconduct including adultery and assaulting his wife.

	b.  The Board considered the applicant’s claim that he should have been 
“dual processed” through the disability evaluation system while being considered 
for involuntary separation. The Board determined that the greater weight of the 
evidence, including the testimony of the MEB psychiatrist at the Board of Inquiry 
and the advisory opinions from the ARBA medical officers, showed his medical 
condition was evaluated and he met medical retention standards at the time of 
separation from service. Applicant’s medical condition, therefore, did not warrant 
a referral into and consideration by the disability evaluation system during the 
separation process.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

XX:	XX:	XX:	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 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) prescribes the Army Disability Evaluation System and sets forth 
policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of 
his office, grade, rank, or rating. It implements the requirements of Title 10, U.S. 
Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability 
Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) 
and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System 
Procedures) as modified by DoDI 1332.18. 

     a.  The Surgeon General of the Army will establish and interpret medical 
standards for retaining Soldiers on active duty.  

     b.  The objectives are to maintain an effective and fit military organization with 
maximum use of available manpower; provide benefits to eligible Soldiers whose 
military service is terminated because of a service-connected disability; provide 
prompt disability evaluation processing ensuring the rights and interests of the 
Government and Soldier are protected; and, establish the Military Occupational 
Specialty Administrative Retention Review (MAR2) as an Army pre-DES 
evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a 
medical condition that meets the medical retention standards of Army Regulation 
40-501.

     c.  Public Law 110-181 defines the term, physical DES, as a system or 
process of the DoD for evaluating the nature and extent of disabilities affecting 
members of the Armed Forces that is operated by the Secretaries of the military 
departments and is composed of medical evaluation boards, physical evaluation 
boards, counseling of Soldiers, and mechanisms for the final disposition of 
disability evaluations by appropriate personnel. 

     d.  The DES begins for a Soldier when either of the events below occurs:

          (1)  The Soldier is issued a permanent profile approved in accordance with 
the provisions of Army Regulation 40–501 and the profile contains a numerical 
designator of P3/P4 in any of the serial profile factors for a condition that appears 
not to meet medical retention standards in accordance with AR 40–501. Within 
(but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 
profile to refer the Soldier to the DES. 

          (2)  The Soldier is referred to the DES as the outcome of MAR2 evaluation.

     e.  A medical evaluation board is convened to determine whether a Soldier’s 
medical condition(s) meets medical retention standards per Army Regulation 40-
501. This board may determine a Soldier’s condition(s) meet medical retention 
standards and recommend the Soldier be returned to duty. This board must not 
provide conclusions or recommendations regarding fitness determinations. 

     f.  The physical evaluation board (PEB) determines fitness for purposes of 
Soldiers’ retention, separation or retirement for disability under Title 10, U.S. 
Code, chapter 61, or separation for disability without entitlement to disability 
benefits under other than Title 10, U.S. Code, chapter 61. The physical 
evaluation board also makes certain administrative determinations that may 
benefit implications under other provisions of law. The PEB is not a statutory 
board. It is a fact finding board evaluating the physical condition of the Soldier 
against the physical requirement of the Soldier’s office, grade, rank or raring. 

     g.  The PEB may permanently retire a Regular Army Soldier if he has at least 
20 years of service as defined in section 1208, Title 10, U.S. Code.

     h.  Unless reserved for higher authority, the U.S. Army Physical Disability 
Agency approves disability cases for the Secretary of the Army and issues 
disposition instructions for Soldiers separated or retired for physical disability.

     i.  Effective 19 January 2017, the DES legacy process will be used for Army 
Veterans referred to the DES by the Army Board for Correction of Military 
Records (ABCMR). The Secretary of the Army or designee approves requests for 
legacy processing on a case-by-case basis.  The VA Form 21-0819 will not be 
used, to include cases referred by the ABCMR when the applicant does not have 
an active status in the U.S. Army. The VA will not conduct the examination upon 
which the MEB findings are based. Instead, the MEB convening authority will 
assign a physician or physicians to conduct the required examination(s). The 
examinations will meet the minimum criteria of the VA medical examinations.  
Medical conditions evaluated during the DES will solely consist of those 
conditions for which a P3/P4 profiles was approved and any other conditions 
which the physician conducting the MEB finds individually or in combination are 
not likely to meet medical retention standards. Cases referred by the ABCMR 
address conditions in the context of their status at the time of the Veteran’s 
separation.  

2.  Army Regulation 40-501 (Standards of Medical Fitness) provides information 
on medical fitness standards for induction, enlistment, appointment, retention, 
retirement and related policies and procedures. Chapter 3 describes the various 
medical conditions and physical defects which may render a Soldier unfit for 
further military services. These medical conditions and physical defects, 
individually or in combination, are those that significantly limit or interfere with the 
Soldier’s performance of duty; may compromise or aggravate the Soldier’s health 
or well-being, if they were to remain in the military Service such as frequent 
clinical monitoring; may compromise the health or well-being of other Soldiers; 
and may prejudice the best interest of the Government if the individual were to 
remain in the military Service. Soldiers who do not meet the required medical 
standards will be evaluated by a medical evaluation board. 

     a.  A Soldier will not be referred to a medical evaluation board or a physical 
evaluation board because of impairments that were known to exist at the time of 
acceptance in the Army and that have remained essentially the same in degree 
of severity and have not interfered with successful job performance. 
     b.  The general policy states that possession of one or more of the conditions 
listed in this chapter does not mean automatic retirement or separation from the 
Service. Physicians are responsible for referring Soldiers with conditions in this 
chapter to a medical evaluation board.  

     c.  Paragraph 3–32 refers to mood disorders and paragraph 3-33 refers to 
anxiety, somatoform, or dissociative disorders providing the following criteria is 
met: 

*	persistence or recurrence of symptoms sufficient to require extended or 
recurrent hospitalization
*	persistence or recurrence of symptoms necessitating limitations of duty or 
duty in protected environment
*	persistence or recurrence of symptoms resulting in interference with 
effective military performance

     e.  Paragraph 3-36 refers to adjustment disorders and states situational 
maladjustments due to acute or chronic situational stress do not render an 
individual unfit because of physical disability, but may be the basis for 
administrative separation if recurrent and causing interference with military duty.

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

4.  Army Regulation 600-8-24 prescribes policies and procedures governing 
transfer and discharge of Army officers on active duty for 30 days or more. 
Officer transfers and discharges are governed by statute and Department of 
Defense directive and instructions. The DASA (RB) will act as the Secretary of 
the Army’s designee for Boards of Review. It provides that elimination action may 
be or will be initiated for misconduct, moral or professional dereliction, acts of 
personal misconduct, conduct unbecoming an officer, and adverse information 
filed in the official military personnel file.

     a.  An officer referred or recommended for elimination who does not meet 
medical retention standards will be processed through this regulation and 
through the MEB/PEB process. 

     b.  When it is determined the officer’s mental condition contributed to military 
inefficiency or unsuitability, the medical evaluation will include a psychiatric study 
of the officer. This study will indicate whether the officer was able to distinguish 
right from wrong and whether the officer currently has the mental capacity to 
understand board and judicial proceedings and participate in her or her defense. 
When applicable, the report will also indicate whether the incapacitating mental 
illness could have been the cause of the conduct under investigation.

     c.  At the time an officer is to appear before the Board of Inquiry, if he or she 
does not possess sufficient mental capacity to understand the nature of the 
proceedings or does not behave or cooperate intelligently in defense, the 
proceedings will be delayed until the officer recovers, or the officer will be 
processed through medical channels, whichever applies.

     d.  If a physical or mental condition develops after an officer has been 
recommended for involuntary separation or after the Board of Inquiry 
proceedings are completed, the officer’s commander will immediately notify 
U.S. Army Human Resources Command. 

5.  Army Regulation 600-37 (Unfavorable Information) provides:

     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 filing determination is 
made.

     b.  A General Officer Memorandum of Reprimand (GOMOR) 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 GOMOR is to be filed in the OMPF, the recipient’s submissions are to be 
attached. 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. The burden of proof rests with the 
individual concerned to provide evidence of a clear and convincing nature the 
document is untrue or unjust, in whole or in part, thereby warranting its alteration 
or removal from the OMPF.

6.  Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for 
disability resulting from personal injury suffered or disease contracted in line of 
duty, or for aggravation of a preexisting injury suffered or disease contracted in 
line of duty, in the active military, naval, or air service, during a period of war, the 
United States will pay to any veteran thus disabled and who was discharged or 
released under conditions other than dishonorable from the period of service in 
which said injury or disease was incurred, or preexisting injury or disease was 
aggravated, compensation as provided in this subchapter, but no compensation 
shall be paid if the disability is a result of the veteran's own willful misconduct or 
abuse of alcohol or drugs.

7.  Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic 
Entitlement) states for disability resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a preexisting injury suffered or 
disease contracted in line of duty, in the active military, naval, or air service, 
during other than a period of war, the United States will pay to any veteran thus 
disabled and who was discharged or released under conditions other than 
dishonorable from the period of service in which said injury or disease was 
incurred, or preexisting injury or disease was aggravated, compensation as 
provided in this subchapter, but no compensation shall be paid if the disability is 
a result of the veteran's own willful misconduct or abuse of alcohol or drugs.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210013541


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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