ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 27 May 2022 DOCKET NUMBER: AR20220000899 
APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States Court of Federal Claims. The Court directs the ABCMR to consider the applicant's request for correction of his records. 
1. Specifically, for: 
. 
Reversal of his discharge on 1 April 2021 with continuation on active duty 

. 
Correct or remove his referred Officer Evaluation Report (OER) 

. 
Restore all benefits he and his family are entitled to 

. 
Correct all records to make him whole 

. 
Remove all records inconsistent with the requested relief 

. 
Any other relief the Board may deem appropriate 


2. A personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
U.S. Court of Federal Claims Complaint 

. 
Court Remand 

. 
DD Form 149 (Application for Correction of Military Record) 

. 
Counsel statement 

. 
Table of Exhibits 

. 
Exhibit 1: Remand order 

. 
Exhibit 2: DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 1 April 2021 

. 
Exhibit 3: DD Form 214, ending on 7 June 2018 

. 
Exhibit 4: University of Nebraska transcripts 

. 
Exhibit 5 and 6: Officer Record Brief (ORB) 

. 
Exhibit 7: DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) OER, ending on 12 July 2019 

. 
Exhibit 8: DA Form 2823 (Sworn Statement) 

. 
Exhibit 9: Memorandum, Subject: Commanders Inquiry Findings and Recommendations 

. 
Exhibit 10: Memorandum, Subject: General Officer Memorandum of Reprimand (GOMOR) 

. 
Exhibit 11: Memorandum, Subject: Response to GOMOR 

. 
Exhibit 12: Audio transcript number 1 

. 
Exhibit 13: DA Form 67-10-1, ending on 1 July 2020 

. 
Exhibit 14: Audio transcript number 2 

. 
Exhibit 15: Email correspondence number 1 

. 
Exhibit 16: Audio transcript number 3 

. 
Exhibit 17: Orders Number HO-272-0337 

. 
Exhibit 18: Memorandum, Subject: Legal Memorandum Show Cause for Retention 

. 
Exhibit 19: Memorandum, Subject: Request for Retention 

. 
Exhibit 20: Email correspondence number 2 

. 
Exhibit 21: Memorandum, Subject: Notification of Mandatory Removal due to Non-Selection for promotion 

. 
Exhibit 22: Audio transcript number 4 


FACTS: 
1. 
The Army Review Board Case Tracking System did not reveal another application associated with this case. The applicant did not exhaust his administrative remedies in regards to a consideration of his case by the ABCMR, to which he is entitled. The applicant filed this instant lawsuit. Therefore, the parties asked to remand the case for the ABCMR to hear and consider the removal of his discharge on 1 April 2021 with continuation on active duty, correct or remove his referred OER, restore all benefits him and his family are entitled to, correct all records to make him whole, remove all records inconsistent with the requested relief, any other relief the Board may deem appropriate. Both parties requested that the Court grant the motion to voluntarily remand the case to the agency for further action and stay proceedings until a determination is rendered by the ABCMR. A federal agency's motion for a voluntary remand is commonly granted because it allows an agency to correct its own potential errors without expending the resources of the court in reviewing a record that may be incorrect or incomplete. The remand will cover matters that were not before the ABCMR for consideration. 

2. 
The applicant states through counsel in pertinent part: 


a. On 1 April 2021, the applicant was wrongfully discharged from the U.S. Army based on a series of due process and regulatory violations. The narrative reason for his separation was “non-selection, permanent promotion.” 
b. On 8 June 2018, he was commissioned in the U.S. Army as a medical officer in the rank/grade of first lieutenant (1LT)/O-2. However, as of 29 October 2018, his ORB still indicated that he was a sergeant (SGT)/E-5. Subsequently, on 26 February 2020, his ORB was corrected to show that his rank of 1LT and that his Date of Rank (DOR) was 5 December 2017. The applicant had a service obligation until 18 December 2022. He was assigned to the 1st Cavalry Division, Fort Hood, TX. Between November 2018 and March 2019, he deployed with his unit to Europe. He received positive feedback for his performance during the deployment. His OER included very positive comments stating that he was in the top 10 percent of 1LT's his senior rater -Lieutenant Colonel (LTC) D-rated at the time. 
c. 
In December 2018, he was notified to complete his officer promotion file for consideration for promotion to the rank/grade of captain (CPT)/O-3. When he made further inquiries, he was advised that he was not eligible for promotion because he did not have one year of commissioned time when the promotion board would convene. He never received any notification that he was not selected for promotion. 

d. 
On 25 November 2019, the applicant married his wife who at the time was an enlisted Soldier in another unit in the Army. Consistent with the Army regulations, they immediately updated their personnel records and advised their units accordingly. The applicant's chain of command decided to initiate an investigation to see whether he fraternized before his marriage. On 2 December 2019, he was flagged based on the Investigation. He was not counseled that he was flagged as required under Army Regulation (AR) 600-8-2 (Suspension of Favorable Personnel Actions (Flag)). 

e. 
The investigation was very short and inadequate. The Investigating Officer (IO) only interviewed the applicant and his spouse and they both served as witnesses for their sworn statements. The applicant told the IO that he had a personal relationship with his spouse several days before their marriage. His wife said that they originally met at the end of the deployment in Europe but maintained a professional relationship. They married to comply with the Army regulations. The IO never interviewed any other unit members or anyone who observed him and his wife during the deployment in Europe or thereafter. The IO completed the investigation on 11 December 2019. Without any basis in fact, the IO made a finding that the inappropriate relationship started during the end of the deployment in Europe. 

f. 
In recommending an “appropriate adverse action” without providing any specific recommendations related to the findings -as required under AR 15-6 (Procedures for Administrative Investigations and Boards of Officers), paragraph 2-6b ('ensure that the recommendations are logically related to the findings') – the IO pointed out that no one knew about the relationship and that the applicant and his wife voluntarily disclosed it. The recommendation failed to recommend any specific remedial or corrective action. The recommendation of 'appropriate' action did not fit within the criteria of acceptable, feasible and suitable under AR 15-6, paragraph 3-11. 

g. 
In December 2019, the applicant was notified again that he was being considered for promotion. However, because he was flagged, he could not be considered for promotion. His flag was removed on 26 February 2020 and he was flagged on the same day for an adverse action. 

h. 
The erroneous AR 15-6 investigation was used to punish the applicant with a GOMOR. On 28 February 2020, he was reprimanded for wrongfully fraternizing with a junior enlisted Soldier during the deployment in Europe. The reprimand was written to suggest that the fraternization between the applicant and his spouse lasted for approximately 7 months before they married. When he consulted with his Army legal counsel and pointed out the errors in the reprimand and the investigation, he was effectively advised to 'fight' the reprimand by apologizing for his actions. Based on this incomplete advice, he took responsibility for his actions and focused on addressing his strong performance record and desire to continue to serve in the Army. 

i. 
On 26 March 2020, the reprimand was permanently filed in the applicant's records. Subsequently, he received another evaluation where he was recommended for promotion to the rank of CPT and his performance as a medical practitioner has been described as excellent. However, in violation of AR 623-3 (Evaluation Reporting System), Appendix E3, his supervising physician was not his rater or senior rater. When he inquired about this, he was told that the rating scheme was decided after a long discussion or words to that effect. When, he made further inquiries about the rating scheme, he was told that this is how it was done for years. During his meeting with his senior rater -LTC D-, the applicant understood that his senior rater did not want to give him a referred evaluation. His rater – Major (MAJ) Du-also decided not to give a top block to him because in his view, he did not help the battalion solve its problems -even though he never counseled him about this requirement. MAJ Du-also said that his evaluation would automatically be referred because he received the reprimand ­however he was unable to provide any reference in AR 623-3. 

j. 
On 25 September 2020, the applicant was notified that he was required to show cause for retention based on his wrongful fraternization, conduct unbecoming and receiving the reprimand. In his responses, his counsel pointed out that AR 600-20 (Army Command Policy) directed commanders to consider the minimum action necessary to ensure the needs of good order and discipline are satisfied and that the relationship in question only lasted for approximately 1 week. In addition, his counsel also highlighted that only through his voluntary reporting of the marriage and cooperation during the investigation the unit learned about his relationship. This was particularly important because his former brigade commander -who was subsequently removed for toxic leadership -recommended a General Officer Article 15 punishment. He requested to be retained and provided numerous character letters strongly recommending his retention. He also highlighted his excellent performance and pointed out that he regained his unit's trust and that his unit wanted him to deploy again. On 


10 October 2020, he was notified that he was not selected for promotion. On 1 April 2021, the applicant was separated from active duty for not being selected for permanent promotion. Following his discharge, the Veterans Affairs diagnosed him with a 50 percent disability rating for an Adjustment Disorder with Mixed Anxiety and Depressed mood. It was service-connected because of all the stressors he was subjected to during the investigative and separation proceedings. 
k. The remainder of counsel's statement is provided in the supporting documents for the Board's review. 
3. A review of the applicant's official records shows the following: 
a. 
On 8 June 2018, having had prior Regular Army (RA) enlisted service the applicant was appointed as a RA officer in the rank of 1LT, and executed an oath of office. His rank was adjusted based on calculated service credit while attending the U.S. Army Physician Assistant Program through the University of Nebraska. DA Form 5074 (Record of Entry Grade Credit (Health Services Officers) confirms he was given 2-years credit for 1LT which required 1-year and 6 months' time in service, with 6-months in excess required for the grade. 

b. 
DA Form 1059 (Service School Academic Evaluation Report) shows the applicant attended and completed the Basic Officer Leader Course on 14 September 2018. 


c. On 2 December 2019: 
(1) 
The senior commander 1st Brigade Combat Team appointed an IO pursuant to AR 15-6 to conduct a commander's inquiry into facts and circumstances surrounding allegations of the applicant engaging in fraternization. The IO had 10 days from the date of appointment to conduct the investigation. The IO was advised to request any extensions through the legal advisor if required. 

(2) The applicant was flagged for the commander's inquiry. 

d. 
On 11 December 2019, the IO rendered findings of the AR 15-6 investigation and determined through the applicant's confession he engaged in a personal relationship with his now spouse for less than one week prior to getting married. Additionally, both individuals admitted to knowing about their personal relationship being prohibited. An inappropriate relationship prior to their marriage occurred starting towards the end of the deployment to Europe. The IO recommended the commander consider the following: 

. 
appropriate adverse administrative action for the applicant and his now spouse 

. 
the applicant and his now spouse let their respective chains of command know of the marriage after it occurred 

. 
no one in-either chain of command suspected an inappropriate relationship until the Soldiers admitted to their marriage 



e. 
On 26 February 2020, the applicant's commander's inquiry flag was removed on the basis of the case being closed unfavorably, and another flag initiated based on adverse action. 

f. 
On 28 February 2020, the Deputy Commanding General -Maneuver, 1st Cavalry Division, issued the applicant a GOMOR for wrongfully fraternizing with a junior enlisted Soldier during a deployment to Poland. He as in violation of AR 600-20, paragraph 4­14(c)(2), by dating and having a personal relationship with his now spouse. He had seven days to respond to the GOMOR. 

g. 
On 11 March 2020, the applicant responded to the GOMOR and requested the GOMOR not be placed in his Army Military Human Resources Record (AMHRR). He stated in pertinent part " I take full responsibility for my actions and apologize for any negative light that my behavior may have cast upon the United States Army. As a Soldier, I understand that I am held to a higher standard. I agree that any deviation from Army standards by an individual lets themselves, their unit, and leadership down. However, I have worked extremely hard to redress this issue. I am proud to be a United States Army Soldier and take tremendous pride in being part of this organization and protecting our Country. I have served our Country for 9.5 years and hope to continue to serve for many more. 

h. 
On 26 March 2020, the GOMOR issuing officer directed the GOMOR be placed permanently in the applicant's AMHRR. 

i. 
On 1 April 2021, the applicant was honorably discharged from active duty in the rank of 1LT under the provisions of AR 600-8-24 (Officer Transfers and Discharges), by reason of non-selection, permanent promotion. He completed 2 years, 9 months, and 24 days of net active service with 8 years and 13 days of prior active service. DD Form 214, item 12i (Effective Date of Pay Grade) shows 8 June 2018. 


4. The applicant provides through counsel: 
a. 
Exhibit 3; DD Form 214, ending on 7 June 2018, showing his active duty enlisted service for the period 25 May 2010 thru 7 June 2018. 

b. 
Exhibit 4; University of Nebraska transcripts showing the applicant's academic evaluation while at the University. 

c. Exhibits 5 and 6; ORB's providing a brief of the applicant's military service. 

d. 
Exhibit 7; DA Form 67-10-1 showing the applicant's evaluation as the battalion physician assistant in the rank of first lieutenant (1LT)/O-2 for the period 14 October 2018 thru 12 July 2019, in which he was evaluated as "highly qualified" and in the top 10 percent of 15 officers evaluated by the senior rater. This evaluation shows Major (MAJ) L- (Battalion Executive Officer) as the rater, MAJ R- S- (Brigade Surgeon) as the intermediate rater, and LTC D- (Battalion Commander) as the senior rater. 

e. 
Exhibit 8; DA Form 2823 wherein the applicant answers questions from the IO pertaining to his relationship with Specialist (SPC) H who he identified as his wife and answering their personal relationship (which began at the end of the deployment) did not begin until less than a week before they were married (25 November 2019) and she was a SPC at the time of marriage. The form also shows at the time in inquisition no one knew about the relationship or marriage. 

f. 
Exhibit 12; audio transcript number 1 wherein the applicant engages in a conversation with LTC D- pertaining to a counseling and a referred report due to a letter of reprimand. LTC D- offered the applicant the opportunity to submit comments and a rebuttal. LTC D- tells the applicant the letter of reprimand was not for marrying an enlisted Soldier as a fraternization. He further tells the applicant his performance has been excellent. The applicant further understood that comments would not constitute a commander's inquiry, that would be separate. LTC D- replies "yes." The applicant then asks about how to request a commander's inquiry. The applicant goes on to state the findings in the investigation does not correlate with the findings. The transcript continues with the filing determination of the GOMOR requested by the applicant. The transcript then goes into discussion pertaining to the length of the time the applicant's fraternization occurred. The entire transcript is provided in the supporting documents for the Board's review.  

g. 
Exhibit 13; DA Form 67-10-1 showing the applicant's evaluation as the battalion physician assistant in the rank of 1LT for the period 15 July 2019 thru 1 July 2020, in which he was evaluated as "highly qualified." He was recommended for promotion to the rank/grade of captain and the Captain's Career Course by the senior rater. This evaluation shows MAJ D- (Battalion Executive Officer) as the rater, CPT B- (Brigade Surgeon) as the intermediate rater, and LTC D- (Battalion Commander) as the senior rater. 

h. 
Exhibit 14; audio transcript number 2 wherein the applicant engages in a conversation with MAJ P- (Brigade Surgeon) pertaining to his recently received/reviewed OER and the rating scheme presented in his OER. Specifically, the Brigade Executive Officer being in his rating chain. MAJ P- provides the applicant the 


reasoning behind why the rating scheme was constructed the way it had been. The entire audio transcript is provided in the supporting documents for the Board's review. 
i. 
Exhibit 15; email correspondence number 1 showing the applicant inquired about the battalion rating scheme to 1LT G and she replied the rating scheme had been structured as rater; battalion executive officer, intermediate rater; brigade surgeon, senor rater; battalion commander. 

j. 
Exhibit 16; audio transcript number 3 wherein the applicant engages in a conversation with MAJ D- pertaining to performance and obtaining a top block rating as it pertains to the applicant standing out amongst his peers. The applicant also had questions pertaining to the referred portion of his OER and how MAJ D felt about it. MAJ D- went on to say he did not know all of the details about the applicant, and how the relationship between the applicant and his wife started. MAJ D- states the relationship automatically puts into question character and makes the report referred. The applicant states he had gone through the regulation and it did not state anything pertaining to his situation and the evaluation having to be referred. The entire audio transcript is provided in the supporting documents for the Board's review. 

k. 
Exhibit 17; Orders Number 272-0337 showing the applicant was deployed in a temporary duty status to Poland in support of European Deterrence Initiative to proceed on or about 1 November 2020. 

l. 
Exhibit 18; Memorandum, Subject: Legal Memorandum – Show Cause for Retention wherein the applicant's defense counsel refutes the investigation and urges the command to review AR 600-20 which was not done by the IO during the AR 15-6 investigation. 

m. 
Exhibit 19; Memorandum, Subject: Request for Retention wherein the applicant provided a statement to the senior commander Fort Hood, TX, pertaining to his pending separation and requesting to continue serving his country as a physician assistant. 

n. 
Exhibit 20; email correspondence number 2 wherein the applicant was informed by email by a U.S. Army Human Resources Command (HRC) official that the Department of the Army, Fiscal Year 2020, Captain, Army Nurse Corps, Medical Service Corps, and Army Medical Specialist Corps Promotion Selection Boards convened to consider officers for promotion to the next higher grade. Unfortunately, he was not among those selected for promotion by the board: therefore, much to their regret, he must be involuntarily separated or retired from active duty no later than his mandatory removal date. 

o. 
Exhibit 21; Memorandum, Subject: Notification of Mandatory Removal due to Non-Selection for promotion wherein the applicant was informed by HRC that pursuant 


to Title 10, United States Code, section 632 (a) (1) he must be removed from the Army no later than the first day of the seventh month from the approval of the promotion board 's report. The promotion board 's report was approved in September 2020; therefore, he must be separated no later than 1 April 2021, 
p. Exhibit 22; audio transcript number four wherein the applicant's spouse engages in conversation with a Fort Hood, TX lawyer pertaining to the definition of fraternization and Article 134 (General Article) Uniform Code of Military Justice. The applicant's spouse then goes into discussion pertaining to AR 600-20. The entire audio transcript is provided in the supporting documents for the Board's review. 
5. On 12 April 2022, in the processing of this case, HRC, Chief Officer Promotions Board Announcements, Support and Promotion Orders, provided an advisory opinion that states: 
a. 
Based on a review of the inquiry received, as it stands, they cannot speak towards any claims, comments, speculation or assumption of why the applicant believes he was not selected for promotion. The exact reasons of his non-selection are unknown because statutory requirements set forth in Title 10, USC, section 618 and 14104, prevent disclosure of board proceedings to anyone outside of the promotion boards in question. The decision to recommend an officer for promotion is based on the selection board's collective judgment as to the relative merit of an officer's overall record when compared to the records of other officers being considered. 

b. 
Promotions selection boards allow officers the opportunity to submit correspondence to the President of the board, and its members to address any issues he or she feels is important during consideration; failure to do so does not constitute material unfairness or a material error, nor is it an unlawful act. 

c. 
In addition, if the applicant believes that his OER and GOMOR are unjust and the sole reasons of his non-selection, it is recommended that he file an appeal to HRC's Evaluation Appeals Department, in accordance with AR 623-3 and AR 600-37 (Unfavorable Information) for adjudication and if successful, he request reconsideration for promotion by a special selection board and if selected, possible reinstatement on the Active Duty List or Reserve Active Status List. 


6. 
On 18 April 2022, by email, the applicant was provided a copy of the advisory opinion for comment. 

7. 
On 29 April 2022, through counsel, the applicant provided a response to the advisory opinion that states in pertinent part; 


a. The applicant asserts that his promotion file was improperly processed and contained erroneous information. These errors contributed to his non-selection. The reason for this wrongful discharge is the non-selection. The advisory opinion seeks to improperly conflate the injustice and erroneous information that he seeks to correct with the internal deliberations of a promotion selection board. The error and injustice are that he was never properly considered for promotion and that his promotion file contained incorrect information. Outside of the erroneous information, all of his evaluations were outstanding and he was recommended for promotion. His records indicate that he was a distinguished honor graduate. He maintained a Top Secret – Sensitive Compartmented Information security clearance and he completed the Army's Airborne and Air Assault schools – which is typically uncommon for a physician assistant. In addition, he has previously served as an enlisted Soldier. He possesses specialized knowledge and hands on experience in explosive ordinance, biological and radiological and related medical treatment – which set him apart from numerous other physician assistants. The Army recognized, in part, the value of his contributions as a physician assistant by initiating a $35,000.00 per year retention bonus in addition to other pays to incentivize retention for battalion-level medical providers such as him. But for the erroneous records and other promotion processing improprieties, it is likely that he would have been properly retained and promoted. 
b. 
The advisory opinion references Title 10, USC, section 618 but this section supports the applicant's arguments. Section 618 states that the Secretary of the military department will review the report of a selection board to determine whether the board has acted contrary to law or regulation. If the Secretary determines that there was a violation, the report will be returned. This suggests that if his records are presented to the board in violation of AR 623-3 or improperly processed, he should be entitled to relief. The applicant does not seek internal deliberations of the board. Consistent with Terry v. United States, 144 Fed. Cl. 150 (2019), his military records presented to the board were erroneous, and the ABCMR has the power to correct this error and injustice in this case. 

c. 
The applicant never received any official notices to make submissions to the board and was never allowed to make any additional submissions otherwise. In December 2018 he was notified to complete his officer promotion file. He never received any notices that he could make any submissions. In December 2019, he was flagged. He was never given any opportunity to make any submissions. His review of his promotion board file closed in the beginning of 2020. At the time, his reprimand was not filed. However, he understands that the promotion board was delayed due to the pandemic. Because the unit failed to notify him that he was flagged, he was not aware of being flagged. In his petition, the applicant explained that on 2 December 2019, the unit flagged him but it failed to counsel him about it – as required under AR 600-8-2. (On 2 December 2019, he was flagged based on the investigation. He was not counseled that he was flagged as required under AR 600-8-2) (ABCMR petition, page 4). To the extent that the promotion board considered his evaluation and reprimand – he 


was denied due process. The advisory opinion failed to produce any evidence to show that he somehow failed to make any responses. Had he received any notifications to provide responses, he would have made timely responses. He engaged his chain of command concerning the incorrect OER and the reprimand, but the chain of command effectively told him that that is how it was decided they would handle his OER and they would not make any changes to the reprimand. On 1 April 2021, he was discharged because he was not selected for promotion. On 18 August 2021, he filed a lawsuit in the 
U.S. 
Court of Federal Claims contesting his discharge. On 3 December 2021, he petitioned the ABCMR for relief. He should be entitled to relief because he was denied the opportunity to be properly considered for promotion. 

d. 
The applicant was advised by the legal office at Fort Hood that he could not appeal the reprimand until 1 year had passed – which is only correct under limited circumstances. The reprimand was filed on 26 March 2020 and he was separated on 1 April 2021. (ABCMR Petition, Exhibit 1 – 2021 DD Form 214) Based on this, it is proper for him to petition the ABCMR in this case. Concerning his OER, he asserts that the primary purpose of his petition is to contest his wrongful discharge. The discharge resulted from being not selected for promotion due to improper processing of his file and errors in his records. The ABCMR has the power to correct this. In addition, he would like to submit that had he been allowed to be retained on active duty, he would likely be medically retired due to behavioral health issues. His treating psychologist advised him that he was being separated before the medical evaluation board process could start. The harassment that he received from the unit due to reporting his marriage between December 2019 and April 2021 caused him to suffer from stress and anxiety. He attempted to protect his rights but his unit continued to violate his due process rights. Ultimately, he was not separated due to any misconduct. However, he contends that he was prematurely considered for promotion, his OER was incorrect, the underlying investigation was flawed, the reprimand unwarranted, and all these errors led to his separation. 


BOARD DISCUSSION: 
1. 
The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

2. 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined partial relief was warranted. The applicant's contentions, the military record, a HRC advisory opinion, his rebuttal, and regulatory guidance were carefully considered. AR 623-3 provides guidance for the rating scheme of officers serving in the Medical Corps such as the applicant. The Board agreed there is sufficient evidence that the rating scheme for the contested OER failed 

to comply with the regulatory requirement that a supervising physician be included as either the applicant’s rater or senior rater. Based on this error, the Board determined the contested OER should be removed from his record and replaced with a memorandum of nonrated time. 

3. 
The Board reviewed the AR 15-6 and the IO’s findings and recommendation. Challenging for the Board was the IO’s findings and determination resulting from merely interviewing the applicant and his spouse before providing the investigation results to the commanding officer. The applicant received a GOMOR as a result of the AR 15-6. The IO did not obtain statements from any other individuals who knew the applicant or his spouse during their European deployment or the time period preceding their marriage. Rather the findings appears to be based on an assumption that, because the applicant and his spouse ultimately married, their previous relationship must have been fraternization. After weighing the available evidence, including the applicant’s acceptance of responsibility for his actions when he rebutted the GOMOR, the Board found a preponderance of the evidence did not support the finding that the applicant had fraternized with a junior enlisted Soldier during a deployment to Poland. As such, the Board determined the GOMOR should be removed from the applicant’s official military personnel file (OMPF). 

4. 
The applicant was discharged after twice being nonselected for promotion to CPT. The evidence reflects he failed to be selected for promotion during the FY2020 CPT promotion selection board. The Board found it unclear whether the applicant was considered by the FY2019 promotion selection board. Based on when the applicant entered on active duty and his date of rank for 1LT, the Board noted that, while he would have been within the promotion zone, the applicant would not have had one year of service since his most recent placement on the active duty list before the FY2019 promotion selection board convened in March 2019. Further, neither a nonselection memorandum for the FY2019 promotion selection board nor documentation of the Commanding General, HRC granting an exception to the one-year active duty rule is of record. The Board found it unclear whether the applicant received two considerations for promotion to CPT prior to his discharge in 2021. While the reason the applicant was not selected for promotion is unknown, the Board found a preponderance of the 


evidence supported referral of the applicant’s record to a SSB for consideration for 
promotion by the FY2020 CPT promotion selection board. Reinstatement, which would encompass restoration of benefits and entitlements, will depend on a favorable promotion decision. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 
1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 
a. removing the contested GOMOR and associated documents from his OMPF; 
b. 
removing the contested OER from his OMPF and replacing it with a memorandum of non-rated time; and 

c. 
referring his record before a SSB for promotion consideration to CPT under the FY2020, Active Component, Captain, Army Medical Specialist Corps Promotion Selection Board criteria. In the event he is selected for promotion to CPT, provide him the opportunity for reinstatement if he is otherwise fully eligible. 


2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to reinstatement without promotion selection by the SSB. 
X 
CHAIRPERSON 
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. AR 600-8-24 (Officer Transfers and Discharges) paragraph 5-6 (Separation of commissioned officers and chief warrant officers who are twice non-selected for active duty list promotion by a Headquarters, Department of the Army centralized board) states commissioned officers and chief warrant officers on the active duty list twice non-selected for promotion to the grade of captain, major, lieutenant colonel, CW3, or chief warrant officer four (CW4) will be involuntarily released or discharged unless they are— 
. 
Selectively continued 

. 
Within 2 years of retirement (completes 18 or more years Active Federal Service on their scheduled release date) 

. 
Retired 

. 
A health professions officer in the grade of captain (O–3) or major (O–4); these officers will be retained on Active Duty until completion of their Active Duty Service Obligation prior to discharge, unless sooner retired or discharged under another provision of law 


Commissioned officers and chief warrant officers (except as stated in paras 5–6d and 5–6e) will be separated on the 1st day of the 7th calendar month after approval of the promotion board's report unless earlier release is voluntarily requested or retention on Active Duty in a Reserve status is approved by the Secretary of the Army or designee. 
2. 
AR 600-8-104 (Army Military Human Resources Records Management governs the composition of Official Military Personnel File (OMPF) and states the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 

3. 
AR 623-3 (Evaluating Reporting System) states: 


a. Paragraph 1-11 (Commander's or Commandant's Inquiry) states during the evaluation process or after it has been completed, when a commander or commandant discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter. The definition of a rendered evaluation report is one that is authenticated by all designated rating officials with a senior rater's intent to present the final evaluation report to the rated Soldier for authentication, or apply the appropriate statement in the absence or inability for the rater Soldier to authenticate. The Commander's or Commandant's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation report, the compliance of the evaluation with policy and procedures established by Headquarters Department of the Army, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the accurate evaluation of a rated Soldier by a rating official that was made in good faith. 
b.  Chapter 2 (The rating chain) states Commanders, commandants, and organization leaders will establish rating chains and publish rating schemes within their units or organizations in accordance with locally developed procedures and Army regulations. Established rating chains will correspond as nearly as practicable to the chain of command or supervision within a unit or organization, regardless of component or geographical location. Rating schemes will identify the name of the rated Soldier and the effective date for each of the rating officials (date on which the rating official assumed their role as the rating official for the rated Soldier). Rating schemes will be published and made accessible, either manually or electronically, to each rated Soldier and each member of the rating chain. Any changes to a rating scheme will be published and distributed, as required. No changes may be retroactive. Once established and approved, rating chains are maintained by rating officials to provide the best evaluation of an individual Soldier’s performance and potential. A rating chain also ties the rated Soldier’s performance to a specific senior or subordinate relationship. This allows for proper counseling to develop the rated Soldier and accomplish the mission. These functions are normally best achieved within an organization’s chain of command or supervision. Generally, the evaluation of Soldiers by persons not involved in the chain of command or chain of supervision is inappropriate. The rater will be the immediate supervisor of the rated Soldier responsible for directing and assessing the rated Soldier’s performance. The rater will normally be senior to the rated Soldier in grade or date of rank. An intermediate rater will be an officer of the U.S. Armed Forces, U.S. Coast Guard, or Allied Armed Forces, or an employee of a U.S. Government agency (including non-appropriated fund employees). In addition, the intermediate rater will be senior to the rated officer in grade or date of rank. The senior rater will be the immediate supervisor of the rater and a supervisor above all other rating officials in the rated officer’s chain of command or chain of supervision. 
4.  AR 600-20 (Army Command Policy) Paragraph 4-14 (Relationships between Soldiers of different grades) states: 
a. 
The term "officer" used in this paragraph includes both commissioned and warrant officers, unless otherwise stated. The term "noncommissioned officer" refers to a Soldier in the grade of corporal to Command Sergeant Major/Sergeant Major. The term "junior enlisted Soldier" refers to a Soldier in the grade of private to specialist. The provisions of this paragraph apply to both relationships between Soldiers in the Regular Army and U.S. Army Reserve, and between Soldiers and personnel of other military services. 

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

. 
Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command 

. 
Cause actual or perceived partiality or unfairness 

. 
Involve, or appear to involve, the improper use of grade or rank or position for personal gain 

. 
Are, or are perceived to be, exploitative or coercive in nature 

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



c. 
Certain types of personal relationships between officers and enlisted Soldiers, or NCOs and junior enlisted Soldiers, are prohibited. Prohibited relationships include dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships between officers and enlisted personnel, or NCOs and junior enlisted Soldiers. This prohibition does not include marriages between an officer and an enlisted member or an NCO and a junior enlisted Soldier. However, when evidence of fraternization between an officer and enlisted member or an NCO and a junior enlisted Soldier prior to their marriage exists, their marriage does not preclude appropriate command action based on the prior fraternization. Commanders have a wide range of responses available including counseling, reprimand, order to cease a relationship prior to marriage, reassignment, administrative action, or adverse action. Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is appropriate. Generally, the commander should take the minimum action necessary to ensure that the needs of good order and discipline are satisfied. 


5.  AR 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) states. 
a.  Paragraph 7-8 (Rules for initiating a Flag) It is the commander’s responsibility to ensure a DA Form 268 is immediately initiated on a Soldier and that the Flag is input into the human resources systems when the Soldier’s commander determines that one or more of the conditions in this regulation exist. Initiation of a Flag under such conditions is mandatory. The Soldier’s commander, a general officer, a commandant, or the head of a Department of the Army (DA) staff or field operating agency can direct the initiation of a Flag. Authentication of the DA Form 268 initiating the Flag will be in accordance with paragraph 2–5. 
b.  Paragraph 2-9 (Removal of a Flag) only officers authorized to direct initiation of a Flag may direct removal of a Flag (for example, the unit commander, a general officer, commandant, or head of a DA staff or field operating agency) unless otherwise directed by this regulation or Commander, U.S. Army Human Resources Command. For a commander's investigation remove the Flag when the Soldier is flagged for pending court-martial or non-judicial or administrative disciplinary action resulting from the adverse findings of the commander’s investigation. 
6. Title 10, United States Code (USC), section 632 states except an officer of the Navy and Marine Corps who is an officer designated for limited duty (to whom section 8146(e) or 8372 of this title applies) and except as provided under section 637(a) of this title, each officer of the Army, Air Force, Marine Corps, or Space Force on the active-duty list who holds the grade of captain or major, and each officer of the Navy on the active-duty list who holds the grade of lieutenant or lieutenant commander, who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall— 
(1) except as provided in paragraph (3) and in subsection (c), be discharged on the date requested by him and approved by the Secretary concerned, which date shall be not later than the first day of the seventh calendar month beginning after the month in which the President approves the report of the board which considered him for the second time. 
7. 
Title 10, USC, section 618 states upon receipt of the report of a selection board submitted to him under section 617(a) of this title, the Secretary of the military department concerned shall review the report to determine whether the board has acted contrary to law or regulation or to guidelines furnished the board under section 615(b) of this title. Following such review, unless the Secretary concerned makes a determination as described in paragraph (2), the Secretary shall submit the report as required by subsection (b) or (c), as appropriate. (2) If, on the basis of a review of the report under paragraph (1), the Secretary of the military department concerned determines that the board acted contrary to law or regulation or to guidelines furnished the board under section 615(b) of this title, the Secretary shall return the report, together with a written explanation of the basis for such determination, to the board for further proceedings. Upon receipt of a report returned by the Secretary concerned under this paragraph, the selection board (or a subsequent selection board convened under section 611(a) of this title for the same grade and competitive category) shall conduct such proceedings as may be necessary in order to revise the report to be consistent with law, regulation, and such guidelines and shall resubmit the report, as revised, to the Secretary in accordance with section 617 of this title. 

8. 
Title 10, USC, section 14104 states the proceedings of a selection board convened under section 14101 or 14502 of this title may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board. This prohibition is a statutory exemption from disclosure, as described in section 552(b)(3) of Title 5. 

9. 
 AR 15-185 (ABCMR) states the Army, by law, may pay claims for amounts due to applicants as a result of correction of military records. The ABCMR will furnish DFAS copies of decisions potentially affecting monetary entitlement or benefits. The DFAS will treat such decisions as claims for payment by or on behalf of the applicant. The DFAS will settle claims on the basis of the corrected military record. The DFAS will compute the amount due, if any. The DFAS may require applicants to furnish additional information to establish their status as proper parties to the claim and to aid in deciding amounts due. 


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