1. Applicant’s Name: a. Application Date: 12 January 2022 b. Date Received: 18 January 2022 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests, through counsel, an upgrade to honorable, and changes to the separation program designator (SPD) code, reentry eligibility (RE) code, and narrative reason to “Secretarial Authority.” The applicant through counsel, seeks relief contending, in effect, the applicant denies having engaged in the alleged misconduct and that Private First Class (PFC) E__ A. M__’s allegations are 100 percent false. At the time of the alleged misconduct, the applicant was suffering from behavioral health conditions, which qualifies the applicant for consideration and relief pursuant to the Hagel Memorandum; and the applicant's overall service record at the time of separation and conduct post discharge are deserving of an honorable characterization of service. In addition, the applicant was a Medical Services Officer stationed in Gardez, Afghanistan. Two Taliban terrorists engaged an Apache aback helicopter one evening. The Apache fired thermobaric missiles at the terrorists who sustained direct hits. The missiles caused internal injuries not easily assessed by the medics on the ground. The terrorists were transported by ground back to the Battalion Surgeon at Forward Operating Base (FOB) Gardez. Both terrorists were deceased when they arrived. The Tactical Operations Center (TOC) Commander, MAJ D__ M. J__, was listening to all the radio communications in the TOC and had the same information that the applicant had when the decision was made to ground casualty evacuation (CASEVAC) the terrorists back to the FOB. The on-scene Troop Commander, Captain (CPT) C__ C. C__ decided to do site exploitation rather than immediately ground CASEVAC the wounded terrorist back to the Battalion Surgeon, this delayed treatment. The on-scene medic, PFC D__ S. L__ failed to request a “urgent” or “urgent/surgical” (immediate) medical evacuation (MEDEVAC), and instead requested a MEDEVAC be performed within 24 hours. The on-scene medic, PFC L__ failed to properly assess the terrorist’s medical condition. The Battalion Surgeon, Lieutenant Colonel (LTC) M__ B. P__, and Battalion Physician’s Assistant, CPT R__ P. M__ did not report to the TOC to assist the TOC Commander and the applicant during the event. The on-scene medic, PFC L__, Battalion Surgeon, LTC P__ and Battalion Physician’s Assistant, CPT M__ did weigh in and give their medical opinion on the MEDEVAC when the applicant went across the FOB to seek their assistance. Major (MAJ) L__ J. G__ Jr., Brigade Surgeon, had a serious conflict of interest, and the applicant requested that an independent 15-6 Investigating Officer should be appointed. The applicant further details the contentions in an allied self-authored statement provided with the application. Counsel states that the applicant previously petitioned this Board for relief on 7 August 2012. b. Board Type and Decision: In a telephonic personal appearance board conducted on 2 October 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / Army Regulation (AR) 600-8-24, Chapter 4-2B / JNC / General (Under Honorable Conditions) b. Date of Discharge: 14 January 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 October 2008, the applicant intended to submit matters for consideration or submit a rebuttal in the applicant’s behalf, however, the applicant’s AMHRR is void of a rebuttal. (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, subparagraphs 4-2b(4), (5), and (8), for acts of intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer, due to the following reasons: On 14 May 2008, an investigation was conducted, pursuant to AR 15-6 into the wounding and eventual death of enemy combatants by coalition forces on 13 May 2008 near FOB Gardez, Afghanistan. One of the aspects of the investigation involved MEDEVAC procedures. The investigating officer found that the applicant showed poor judgement and did not follow published MEDEVAC and patient treatment procedures. The investigating officer also found the applicant submitted a false sworn statement during the investigation. On 15 June 2008 (7 July 2008), an investigation was conducted, pursuant to AR 15-6, into the facts and circumstances surrounding inappropriate conduct and alleged hostile sexual environment within the medical platoon of Charlie Company, 1-61st Cavalry. The investigating officer found that there was evidence of a hostile sexual environment to include the applicant sharing stories of past sexual experiences, sexual questions or comments asked about females, and multiple reports of the applicant moving about the medical aid station in a state of undress in front of female Soldiers. Further, the investigating officer found that the applicant was the originator of the sexual/gender tension in the medical platoon. (3) Legal Consultation Date: NIF (4) Board of Inquiry (BOI): On 29 October 2008, the applicant waived any right to submit matters in explanation, rebuttal, or defense concerning the allegations in the applicant’s case. (5) GOSCA Recommendation Date / Characterization: On 4 November 2008, the GOSCA recommended approval of the applicant’s request for resignation in lieu of elimination from service. / General (Under Honorable Conditions) (6) DA Board of Review for Eliminations: NA (7) Separation Decision Date / Characterization: 12 December 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 22 March 2007 / NIF b. Age at Appointment: / Education: 35 / Two College Degrees c. Highest Grade Achieved / MOS / Total Service: O1 / 67A, Health Services / 9 years, 7 months, 16 days d. Prior Service / Characterizations: USN, 25 July 1990 - 15 May 1996 / HD USNR, 16 May 1996 - 9 July 1998 / HD (Break in Service) ARNG, 8 June 1999 - 1 February 2001 / HD USAR-IRR, 1 February 2001 - 14 November 2006 / HD RA, 15 November 2006 - 21 March 2007 / HD e. Overseas Service / Combat Service: Somalia, SWA / Afghanistan (15 March - 20 December 2008) f. Awards and Decorations: ACM-CS, AAM, NAM-V, NAM, Navy/Marine Combat Action Ribbon, MUC, NGCM, NDSM-2, AFEM-2, SWASM-2BSS, GWOTSM, AFSM, ASR, OSR, Navy SSDR g. Performance Ratings: 22 March 2007 - 1 July 2008 / Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: Developmental Counseling Form, 10 June 2008, shows the applicant was counseled for suspension of platoon leader duties pending an investigation for allegations of improper conduct. Report of Proceedings (ROP) by Investigating Officer/Board of Officers, completed on 19 June 2008, shows on 14 May 2008, an investigation commenced in accordance with (IAW) AR 15-6, states see memorandum, AR 15-6, 20 June 2008. This memorandum documents the facts, discussion, findings, and recommendations for the informal investigation IAW AR 15-6 into the wounding and eventual death of enemy combatants by coalition forces on 13 May 2008 near FOB Gardez, Afghanistan. One of the aspects of the investigation involved MEDEVAC procedures. The investigating officer found that the applicant did not follow published MEDEVAC procedures and medical rules of engagement (MROE). The applicant independently made the decision to deny both the first and second MEDEVAC requests. In addition, the applicant submitted a false sworn statement during the investigation. If proper MROE and MEDEVAC procedures had been followed the two detainees would have received a MEDEVAC. The investigating officer, in part, recommended that a General Officer Memorandum of Reprimand (GOMOR) be given to the applicant for submitting a false sworn statement. The applicant provided memorandum, AR 15-6 Investigation, Executive Summary, 20 June 2008, that shows the Combines Task Force (CTF) Currahee Surgeon, in part, recommended that published CTF Currahee MEDEVAC and MROE procedures be followed at all times and that all medical leaders reinforce the importance of using proper medical terminology by all medical personnel and communicating about medical matters. The CTF Currahee Surgeon also recommended the applicant receive a GOMOR for submitting a false sworn statement. The applicant provided memorandum, Legal Review of AR 15-6 Investigation (Wounding and Eventual Deaths of Enemy Combatants by Coalition Forces on 13 May 2008, in the vicinity of FOB Gardez, Afghanistan, 28 June 2008, shows the shows the command judge advocate determined there was sufficient evidence to support the investigating officer’s findings. The investigating officer’s recommendations were consistent with the findings. The command judge advocate recommended approval of the investigating officer’s findings and recommendations. Memorandum, Legal Review of AR 15-6 into the wounding and eventual deaths of the enemy combatants by coalition forces on 13 May 2008, in the vicinity of FOB Gardez, Afghanistan, 1 July 2008, shows the chief of administrative law found the investigation was legally sufficient. The investigating officer’s recommendation for adverse administrative action against the applicant was not recommended. Memorandum, Legal Review of AR 15-6 Investigation (Inappropriate Conduct within Medical Platoon of C Company, 1-61st Cavalry), 7 July 2008, shows the command judge advocate found the investigation legally sufficient. officer’s findings. The facts support the findings and the recommendations are legally sufficient. ROP by Investigating Officer/Board of Officers, completed on 8 July 2008, shows on 7 July 2008, an investigation commenced IAW AR 15-6, into the facts and circumstances surrounding inappropriate conduct and alleged hostile sexual environment within the medical platoon of Charlie Company, 1-61st Cavalry. The investigating officer found that the applicant shared stories of past sexual experiences, sexual questions or comments asked about females, and multiple reports of the applicant moving about the medical aid station in a state of undress in front of female Soldiers, to the point of asking the female Soldiers if the applicant was “hot for someone [the applicant’s] age period.” Further, the investigating officer found that the applicant was the originator of the sexual/gender tension in the medical platoon. Memorandum for Record, AR 15-6 Investigation into the Death of the Enemy Combatants on 13 May 2008 in the vicinity of FOB Gardez, Afghanistan, 8 July 2008, shows the GOSCA approved the investigating officer’s findings and recommendations except for the recommendation concerning adverse administrative action against the applicant. Memorandum, Initiation of Elimination, 22 September 2008, shows the GOSCA required the applicant to show cause for retention on active duty under the provisions of AR 600-8-24, subparagraphs 4-2b (4), (5), and (8), for acts of intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer. This action was based on the applicant’s misconduct and professional dereliction because the applicant committed an offense under the Uniform Code of Military Justice and engaged in conduct unbecoming an officer and gentleman as documented in the above stated investigations completed on 8 July 2008 and 19 June 2008. Memorandum, Resignation in lieu of Elimination Proceedings, 29 October 2008, the applicant voluntarily tendered resignation from the Army and requested a discharge in lieu of further elimination action. Memorandum, Resignation in lieu of Elimination Case, 12 December 2008, shows the Department of the Army Ad Hoc Review Board reviewed the applicant's resignation. The Deputy Assistant Secretary (Army Review Boards) approved the applicant's discharge with a characterization of service of general, under honorable conditions. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA disability rating decision, 19 May 2020, showing the applicant was rated 100 percent disability for PTSD. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed Tabs A (A1-A3) through E; additional evidence Tabs F-K; self-authored statement; seal team letter of recommendation. 6. POST SERVICE ACCOMPLISHMENTS: The applicant obtained a bachelor’s degree and a Law Degree. The applicant got married and worked various jobs in the security and medical evacuation sectors. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming PTSD, TBI, sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23 provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DODI 5200.02 and AR 380-67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under general (under honorable conditions) normally appropriate when an officer: Submits an unqualified resignation; Separated based on misconduct; discharged for physical disability resulting from intentional misconduct or neglect; and, for final revocation of a security clearance. (4) Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty. (5) Paragraph 4-2b, prescribes for the elimination of an officer for misconduct, moral or professional dereliction, or in the interests of national security. (6) Paragraph 4-20a (previously 4-24a), states an officer identified for elimination may, at any time during or prior to the final action in the elimination case elect one of the following options: (1) Submit a resignation in lieu of elimination; (2) request a discharge in lieu of elimination; and (3) Apply for retirement in lieu of elimination if otherwise eligible. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JNC” as the appropriate code to assign commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests, through counsel, an upgrade to honorable, and changes to the SPD and RE codes, and narrative reason to “Secretarial Authority.” The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. b. The applicant honorably served over 7 years between the Navy, ARNG, and Regular Army as an enlisted Soldier. In 2007, the applicant enlisted in the Regular Army as a commissioned officer in the rank of second lieutenant under health services and deployed to Afghanistan in 2008. The applicant was suspended of platoon leader duties in June 2008 pending an investigation for allegations of improper conduct. Two separate investigations were conducted: (1) wounding and eventual death of enemy combatants by coalition forces on 13 May 2008 near FOB Gardez, Afghanistan because of MEDEVAC procedures; and (2) inappropriate conduct and alleged hostile sexual environment within the medical platoon. The two investigations were found legally sufficient and approved by the GOSCA and appointed authority respectably. On 22 September 2008, the GOSCA initiated a show cause for retention on active duty under the provisions of AR 600-8-24, subparagraphs 4-2b (4), (5), and (8), for acts of intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer. On 29 October 2008, the applicant voluntarily tendered resignation from the Army and requested a discharge in lieu of further elimination action. On 12 December 2008, the Deputy Assistant Secretary (Army Review Boards) approved the applicant's discharge with a characterization of service of general, under honorable conditions and was discharged on 14 January 2009. c. The applicant through counsel requests the narrative reason for the discharge to be changed to “Secretarial Authority.” The applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Unacceptable Conduct,” and the separation code is “JNC.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, SPD Codes. The regulation further stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. d. The applicant through counsel requests the SPD code to be changed to “Secretarial Authority.” The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 4, paragraph 4-2b, is “JNC.” e. The applicant through counsel requests the RE code be changed. Block 27 (RE Code) of the applicant’s DD Form 214 shows as “NA.” The applicant’s DD Form 214 does not have an RE code. There is no basis for changing the DD Form 214. f. The applicant through counsel contends, in effect, the applicant denies having engaged in the alleged misconduct (Shared stories of past sexual experiences with platoon members; Asked sexual questions and comments about other females both celebrities and other members/visitors to Team Paktya; Moved about the Aid Station in a state of undress in front of Soldiers; Treated one female Soldier differently than I treated the other female Soldier in the platoon) and that PFC M__’s allegations are 100 percent false. No specific sexual stories nor were specific sexual questions or comments cited in the AR 15-6 Investigating Officer’s report. ROP by Investigating Officer/Board of Officers, completed on 8 July 2008, shows the investigating officer found that the applicant shared stories of past sexual experiences, sexual questions or comments asked about females, and multiple reports of the applicant moving about the medical aid station in a state of undress in front of female Soldiers, to the point of asking the female Soldiers if the applicant was “hot for someone [the applicant’s] age period.” Further, the investigating officer found that the applicant was the originator of the sexual/gender tension in the medical platoon. Sergeant First Class (SFC) T__ A. G__, the applicant’s platoon sergeant’s, sworn statement, 7 July 2008, states SFC G__ does not believe the applicant would go into a sleeping bag with PFC M__. The applicant goes into a trance it seems when telling stories, but the applicant loves their wife. SFC G__ cannot see the applicant doing that. SFC V__ C. R__’s, sworn statement, 7 July 2008, states SFC R__ was the senior food service sergeant and squadron equal opportunity representative. SFC R__’s assessment of the applicant was that the applicant was doing the job of a platoon leader and when the applicant started making PFC M__ go out on mission, PFC M__ wanted the applicant out of the platoon. PFC M__ decided to tell everyone a story that was almost 3 months old. g. The applicant through counsel contends, in effect, at the time of the alleged misconduct, the applicant was suffering from behavioral health conditions that led to a PTSD diagnosis which was a significant and contributing factor in the applicant’s leadership failures as an Army officer. The applicant’s counsel provided VA disability rating decision, 19 May 2020, showing the applicant was rated 100 percent disability for PTSD. The applicant’s AMHRR is void of a mental status evaluation. h. The applicant contends there was confusion with MAJ G__’s (Brigade Surgeon and 15-6 Investigating Officer) medevac protocols. The applicant did not provide specifics as to what was confusing with the MEDEVAC protocols. i. The applicant contends the TOC commander was listening to all the radio communications in the TOC and had the same information that the applicant had when the decision was made to ground CASEVAC the terrorists back to the FOB. MAJ J__’s, TOC commander, sworn statement, 18 May 2008, states in part, the applicant was going back and forth at least two times from the aid station to the TOC to consult with the physician assistant, CPT M__ and the Battalion Surgeon, LTC P__. The medic on the ground said the wounded in action (WIA) was stable and did not have any visible wounds with the exception to scratches to the face but appeared to need medical attention because of shortness of breath, and that the WIA could be ground evacuated. At this point the TOC commander was told by the battle CPT, SFC J__ C. B__ and the applicant that the MEDEVAC was cancelled by the brigade because the patient's condition was not so serious that they couldn't be ground evacuated. The quick reactionary force then asked again about the status of a MEDEVAC, but the tone and statements they made did not sound urgent but sounded as if the MEDEVAC was needed so the ground force could continue the mission. j. The applicant contends the on-scene Troop Commander, CPT C__ decided to do site exploitation rather than immediately ground CASEVAC the wounded terrorist back to the Battalion Surgeon, this delayed treatment. CPT C__’s sworn statement, 14 May 2008, states in part, CPT C__ contacted Squadron Headquarters, informed them of the two casualties. Stated there remained a great deal of land to be searched and requested either ground or aerial evacuation of the enemy WIAs. CPT C__ was advised that ground evac would take too long and to request a nine-line MEDEVAC to initiate aerial evacuation. Within minutes CPT C__, complied and updated Squadron Headquarters that one of the casualties was now deceased and stressed the need to evacuate the other. CPT C__ then departed to continue searching the engagement area with a number of Soldiers, believing that MEDEVAC would soon be enroute. k. The applicant contends the on-scene medic, PFC L__ failed to request a “urgent” or “urgent/surgical” (immediate) MEDEVAC, and instead requested a MEDEVAC be performed within 24 hours. PFC L__’s, Medic, sworn statement, 14 May 2008, states in part, while assessing and giving treatment, a 9-line MEDEVAC was called in. The first sergeant and Second Lieutenant P__ continued to try for a MEDEVAC. ROP by Investigating Officer/Board of Officers, 19 June 2008, shows the investigating officer found that the ground chain of command did their best to obtain a MEDEVAC for the detainees. CPT C__’s sworn statement, 14 May 2008, states in part, CPT C__ complied with the Squadron Headquarters to request a nine-line MEDEVAC. l. The applicant contends the on-scene medic, PFC L__, failed to properly assess the terrorist’s medical condition. ROP by Investigating Officer/Board of Officers, 19 June 2008, shows the investigating officer found that due to the most likely type of injury caused by a N Model Hellfire missile, a thermobaric missile that uses over-pressurization to destroy targets was difficult for the line medic, PFC L__, to accurately communicate a true picture of the two detainee's status. m. The applicant contends LTC P__, Battalion Surgeon and CPT M__, Battalion Physician’s Assistant did not report to the TOC to assist the TOC Commander and the applicant during the event. LTC P__’s sworn statement, 29 May 2008, states the applicant informed LTC P__ that a detainee was being CASEVAC to FOB Gardez. LTC P__ prepared to receive the detainee, however, was informed that the detainee expired. CPT M__’s sworn statement, 25 May 2008, states the applicant came to the aid station to report that one enemy prisoner of war was coming in to get evaluated, that they were 5 minutes away from FOB Gardez, and that they were no injuries but provided vitals. CPT C__, on-scene Troop Commander, said that the platoon leader, the first Sergeant and CPT C__ requested a 9-line and was turned down. CPT M__ asked the applicant about the MEDEVAC and the applicant stated that it was turned down because it did not meet brigade criteria that CPT C__i sent to the applicant. Specialist B__, one of CPT M__’s medics, told CPT M__ while monitoring Panther Main, A Troop reported the “patient is deteriorating.” LTC P__ told CPT M__ that if it was reported to LTC P__, LTC P__ would have MEDEVACED the casualty. n. The applicant contends the on-scene medic, PFC L__, Battalion Surgeon, LTC P__, and Battalion Physician’s Assistant, CPT M__, did weigh in and give their medical opinion on the MEDEVAC when the applicant went across the FOB to seek their assistance. ROP by Investigating Officer/Board of Officers, 19 June 2008, shows the investigating officer found that the applicant, independently made the decision to deny both the first and second MEDEVAC requests. LTC P__’s sworn statement, 28 June 2008, states LTC P__ produced this sworn statement to clarify involvement in the decision to ground or air evac the injured detainee. LTC P__ had no involvement in this decision. When LTC P__ was first notified of this incident, the decision to ground evac the detainee was already made. CPT M__’s sworn statement, 28 June 2008, states there was no direct question asked by the applicant concerning whether to MEDEVAC or not MEDEVAC. o. The applicant contends MAJ G__, Brigade Surgeon, had a serious conflict of interest, and the applicant requested that an independent 15-6 Investigating Officer should be appointed. ROP by Investigating Officer/Board of Officers, 19 June 2008, shows MAJ G__, Brigade Surgeon was the investigating officer. Memorandum, Legal Review of AR 15-6 into the wounding and eventual deaths of the enemy combatants by coalition forces on 13 May 2008, in the vicinity of FOB Gardez, Afghanistan, 1 July 2008, shows the chief of administrative law found the investigation was legally sufficient, however, the recommendation for adverse administrative action against the applicant was not recommended. p. The applicant through counsel contends, in effect, that the applicant's overall service record at the time of separation and conduct post discharge are deserving of an honorable characterization of service. In addition, the applicant and counsel provided honorable discharge certificates and DD Forms 214 for the applicant’s previous service in the Navy and Army National Guard, a Cavallo award for moral courage certificate with nomination letter, a commendation letter, and a higher education recommendation letter. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. q. The applicant obtained a bachelor’s degree and a law degree, got married and worked various jobs in the security and medical evacuation sectors. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member’s overall character. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. b. Counsel / Witness(es) / Observer(s): Mr. Joseph D. Galli Esq. (counsel) 10. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board’s Medical Advisor reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: PTSD (100%SC); Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection establishes PTSD began during military service. Anxiety DO has been documented in VA medical records to be related to miliary service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant has been diagnosed and service connected for PTSD and diagnosed with Anxiety DO, these conditions do not mitigate the applicant’s misconduct of denying both the first and second MEDEVAC requests for two wounded enemy detainees, making a false official statement or creating a hostile sexual environment in his medical platoon as PTSD and Anxiety DO do not affect one’s ability to distinguish right from wrong and act in accordance with the right. Specifically, the applicant’s actions during the MEDEVAC incident were not impulsive or spontaneous and reflected motivation, rationalization, planning and organization. The actions involved in making false official statements involved deliberate intent to conceal. Such behaviors indicate intact frontal lobe functioning. Intact frontal lobe functioning is significant because it indicates that a person possesses the capacity to understand the difference between right and wrong and act in accordance with the right. Accordingly, while Liberal Consideration was applied, the applicant’s misconduct is not mitigated. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation. While the applicant has been diagnosed and service connected for PTSD and diagnosed with Anxiety DO, these conditions do not mitigate the applicant’s misconduct of denying both the first and second MEDEVAC requests for two wounded enemy detainees, making a false official statement or creating a hostile sexual environment in his medical platoon as PTSD and Anxiety DO do not affect one’s ability to distinguish right from wrong and act in accordance with the right. b. Prior Decisions Cited: AR20120016554 c. Response to Contention(s): (1) The applicant through counsel contends, in effect, the applicant denies having engaged in the alleged misconduct (Shared stories of past sexual experiences with platoon members; Asked sexual questions and comments about other females both celebrities and other members/visitors to Team Paktya; Moved about the Aid Station in a state of undress in front of Soldiers; Treated one female Soldier differently than treated the other female Soldier in the platoon) and that PFC M__’s allegations are 100 percent false. The Board considered this contention and determined that the applicant’s discharge was appropriate. (2) The applicant through counsel contends, in effect, at the time of the alleged misconduct, the applicant was suffering from behavioral health conditions that led to a PTSD diagnosis which was a significant and contributing factor in the applicant’s leadership failures as an Army officer. The Board considered this contention and determined that the applicant’s BH diagnoses did not excuse or mitigate the offenses of intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer. (3) The applicant contends there was confusion with MAJ G__’s (Brigade Surgeon and 15-6 Investigating Officer) medevac protocols. The applicant did not provide specifics as to what was confusing with the MEDEVAC protocols. The Board considered this contention non- persuasive during its deliberations. (4) The applicant contends the TOC commander was listening to all the radio communications in the TOC and had the same information that the applicant had when the decision was made to ground CASEVAC the terrorists back to the FOB. The Board considered this contention and determined this contention was non-persuasive during its deliberations. The Board considered this contention and determined that the applicant’s discharge was appropriate. (5) The applicant contends the on-scene Troop Commander, CPT C__ decided to do site exploitation rather than immediately ground CASEVAC the wounded terrorist back to the Battalion Surgeon, this delayed treatment. The Board considered this contention and determined that the applicant’s discharge was appropriate. (6) The applicant contends the on-scene medic, PFC L__ failed to request a “urgent” or “urgent/surgical” (immediate) MEDEVAC, and instead requested a MEDEVAC be performed within 24 hours. The Board considered this contention and determined that the applicant’s discharge was appropriate. (7) The applicant contends the on-scene medic, PFC L__, failed to properly assess the terrorist’s medical condition. The Board considered this contention and determined that the applicant’s discharge was appropriate. (8) The applicant contends LTC P__, Battalion Surgeon and CPT M__, Battalion Physician’s Assistant did not report to the TOC to assist the TOC Commander and the applicant during the event. The Board considered this contention and determined that the applicant’s discharge was appropriate. (9) The applicant contends the on-scene medic, PFC L__, Battalion Surgeon, LTC P__, and Battalion Physician’s Assistant, CPT M__, did weigh in and give their medical opinion on the MEDEVAC when the applicant went across the FOB to seek their assistance. The Board considered this contention and determined that the applicant’s discharge was appropriate. (10) The applicant contends MAJ G__, Brigade Surgeon, had a serious conflict of interest, and the applicant requested that an independent 15-6 Investigating Officer should be appointed. The Board considered this contention and determined that the applicant’s discharge was appropriate. (11) The applicant through counsel contends, in effect, that the applicant's overall service record at the time of separation and conduct post discharge are deserving of an honorable characterization of service. The Board considered this contention and determined that the applicant’s overall service record at the time of separation and post service accomplishments do not outweigh the misconduct based on the seriousness of the applicant’s offenses intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer. d. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. e. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s BH diagnoses did not excuse or mitigate the offenses of intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer. Based on the available information, it is the opinion of the Agency’s BH Advisor that there are no mitigating BH conditions. While the applicant has been diagnosed and service connected for PTSD this condition does not mitigate the misconduct of denying both the first and second MEDEVAC requests for two detainees, making a false official statement or creating a hostile sexual environment in his medical platoon as PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. Panel Members discussed the applicant and counsel’s testimony and the non-BH mitigation of the misconduct. The board also took into consideration the applicant’s length, prior honorable service, quality, combat and post service accomplishments. However, the testimony did not provide a compelling argument that the current discharge is inappropriate, and the applicant’s employment is in contradiction of triggers related to the PTSD diagnosis. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant’s characterization of service or accompanying SPD code because, despite applying liberal consideration of all the evidence before the Board, the applicant’s BH conditions did not excuse or mitigate the offenses of denying both the first and second MEDEVAC requests for two detainees, making a false official statement or creating a hostile sexual environment in his medical platoon. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s General discharge (under honorable conditions) was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (3) As the applicant was an Army Officer, there is no reentry code supplied upon discharge, honorable or otherwise. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No change c. Change Reason / SPD code to: No change d. Change RE Code to: N/A e. Change Authority to: No change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20220004617 1