IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20150002359 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the following:

* a medical discharge
* promotion to the rank of major (MAJ)
* removal of the DA Form 67-9 (Officer Evaluation Report (OER)), for the period 1 March 2009 through 13 September 2011 (hereafter referred to as the contested OER), from his official military personnel file (OMPF)
* expeditious processing of his application
* a personal appearance

2.  The applicant states:

	a.  In effect, his application should be expedited on the following grounds:

		(1)  He is a member of the Wounded Warrior Project, having been awarded an 80 percent (%) disability rating from the Department of Veterans Affairs (VA).

		(2)  He was improperly separated from the military on 22 March 2013.  It is now 11 February 2015, nearly 2 years later.  In 2013, he was mentally incapable of pursuing redress.  In 2014, he was improperly advised to request redress through the VA, which he did in early 2014.  After processing his packet for 1 year, the VA informed him that his application should not have been sent to them and closed his case.

		(3)  The allegations of misconduct that he is advancing are severe and widespread.  Several of the individuals who violated policies and ethical standards to his detriment have already retired or left the service.  The more time passes, fewer opportunities for appropriate redress remain. 

   b.  He was inappropriately denied a Medical Evaluation Board (MEB) while on active duty.  He was forced to deny a promotion to MAJ, denied a "Show Cause Board," and threatened with a general court-martial if he did not resign from the service.  All court-martial charges were related to an inability to function due to his diagnosis of general anxiety disorder and post-traumatic stress disorder (PTSD).  A 702 (sic) Sanity Board Evaluation contained verifiably and deliberately falsified information.  Attempts to recant his resignation were ignored.  He was accused of committing sexual harassment although no sexual harassment took place.  A caseworker advised him to apply for redress through the VA.  After nearly 1 year, the VA completed processing his application and then advised him that he should not have applied through them.

   c.  He began to suffer adjustment difficulties following his 2008-2009 deployment to Iraq.  Marital problems and behavioral issues ensued and his command referred him to Behavior Health at the Defense Language Institute in Monterey, CA.  Instead of receiving help with his issues, he was inappropriately labeled a security risk, increasing the stressors he was suffering.  He requested a second opinion in order to avoid career problems in addition to his personal problems and was diagnosed with a personality disorder in contradiction with every known psychological standard in existence, probably to cover for the unprofessional actions of the first psychologist who labeled him a security risk.  

   d.  He then had a permanent change of station to his next duty assignment and his security clearance was suspended and ultimately revoked, further increasing stressors and causing his condition to deteriorate.  Then, information from psychologists painting him as a psychopath was presented to his new command.  This eventually resulted in ostracism, harsh, and unprofessional treatment from leaders and peers, resulting in further increase of stress and deterioration of his mental condition.  He requested a second security clearance evaluation and was again diagnosed with a personality disorder in contradiction with all known standards of psychological practice, likely to cover for the diagnoses of the previous psychologist.  

   e.  The security clearance evaluation contained absolutely no discussion of handling classified material.  This situation again increased stress and resulted in further deteriorated conditions.  Eventually he was threatened with a general court-martial for writing a rude email to a colleague whom he had consistently told the command that he made her uncomfortable and after requesting to be moved to another unit.  Prior to the court-martial he underwent a 706 Sanity Board conducted by Army psychologists.  The produced evaluation contained verifiably false statements, glaring omissions, and again diagnosed him with a personality disorder.  He subsequently submitted a resignation in order to avoid court-martial at the advice of his counsel and spent the next several months trying to have his resignation reversed and receive an MEB.

   f.  After the penultimate Army psychologists evaluation and ineffective psychological and psychiatric care, he began to receive treatment and evaluations from private providers.  All providers contradicted a personality disorder and record increasingly severe diagnosis of an adjustment disorder, then general anxiety disorder, then PTSD, all well-documented with extensive treatment records.  This evidence was presented to the Army and was ignored.  His attempts to recant his resignation were also ignored.  He was forced to decline promotion to MAJ under renewed threat of a felony court-martial for writing a rude email and being later to work despite numerous mood disorder diagnoses and being on numerous psychotropic medications.

   g.  The Army was letting the clock run out on him and he ultimately separated from the military in a degraded mental state, unable to work.  The complete loss of pay cost him his house and his car.  He was unable to provide support to his former spouse and his children.  After moving in with his parents, he began recovery from PTSD ultimately caused by 3 years of ever-increasing stress resulting from fallacious diagnoses and poor treatment by Army psychologists and their efforts in colluding with each other in order to protect their colleagues, as well as harsh treatment from inept military officers also interested only in protecting themselves from the consequences of their incompetence and malice. At the end of 2013, he received an 80% disability rating from the VA for PTSD and carries PTSD among his diagnoses of record.

   h.  He has recovered considerably over the past 2 years, but severe scars and difficulties remain.  The obscene miscarriage of justice remains at the heart of his difficulties with functioning.  After picking up body parts and getting shot at and bombed for his country, he has found that his most lethal and hostile opponent has been the U.S. Government and the narcissism of military officers – allegedly his own team, his brothers in arms.  He does not think he would have PTSD if it were not for the dishonesty of these individuals.  The Army commander mistreated him because they complied with Army psychologists despite all evidence from experiences.  These diagnoses are contradicted by an extensive treatment and evaluation history.  They further show that he did not want to resign, but attempted to receive an MEB, which was opposed by Madigan Army Medical Center (MAMC).  If he had received an MEB he would have been able to request a private evaluation.  Given the concurrent and subsequent treatment and evaluation history from private providers and the VA, he most certainly would have been medically separated and due to the length of his service, would have been medically retired.

   i.  In effect, a letter from Madigan claims that "there is currently no mechanism by which civilian behavioral health providers not associated with, credentialed, or employed by MAMC may render decisions regarding the Medical Retention Decision point or refer a Soldier into the Integrated Disability Evaluation System." However, at no time did anyone expect a private provider to render any binding decision.  Private providers may, however, provide evidence that can be considered by a medical provider at MAMC, as his provider provided to D. Jxxxxx Hxxx, a psychologist qualified to make decisions about retention.  Any honest individual would have concluded from such overwhelming evidence of professionally diagnosed behavioral health problems that he needed to be evaluated by an MEB.  Dr. Hxxx was qualified to make this decision, but he did not do so.

   j.  The letter also claimed that no civilian contractors were ever utilized by Madigan's fusion cell.  This is true because his attempts to be evaluated by a fusion cell contractor were denied.  The letter further indicated he was diagnosed by a private provider with adjustment disorder.  This is also true, but disregards utterly extensive treatment and evaluation history from additional sources that indicate adjustment disorder diagnoses were a portion of his entire diagnostic history that were relevant at an earlier time.  The letter also indicated that "Soldiers undergoing court-martial may not be medically separated."  This is completely grasping at straws.  

   k.  He was not undergoing court-martial proceedings at any time following his signing his resignation and months before his separation, even during his frantic attempts to withdraw his resignation and secure a medical board.  Threats of renewed court-martial charges were constantly brought up whenever the Army needed him to decline promotion or forego a Show Cause Board, but at no time since he signed his resignation was he ever involved in a court-martial process.  

   l.  In effect, the OERs from MAJ Sxxxx and Lieutenant Colonel (LTC) Rxxxxxx contain the false statements that he refused to sign them, when in fact they were created after he left the service and he never knew they existed until 2015.  

   m.  He is also requesting advancement to the rank of MAJ.  Orders were published to promote him on 1 March 2013; however, this did not occur because he was forced under threat of court-martial to sign a declination of promotion.  He was separated on 22 March 2013 as a CPT.  Given that charging a Soldier suffering from severe mood disorders with a felony crime (writing a rude email and being late to work) in order to blackmail the suicidal and mentally unstable Soldier into declining a Show Cause Board and promotion in order to boot him out of the Army quickly and without an MEB is unethical and inappropriate.  He is requesting that the declination of promotion be disregarded and his records reflect his appropriate rank at separation.

   n.  He is submitting a complete record of his treatment at Greater Lakes Medical Center, documentation that was not available at the time of the VA investigation.  He is also submitting a VA letter verifying that he is 80% disabled and a copy of his diagnosis of record with the VA continuing personality disorder, but including PSTD.  He welcomes a most thorough investigation into the practices and behaviors of the behavioral health workers at MAMC as well as military officers at that institution and his command.  His goal is not merely to obtain medical retirement for himself, but to protect other Soldiers from the criminal practices in that hospital and the negligence of officers in the Army.   

3.  The applicant provides copies of the following:

* Behavioral Health memorandum
* Community Hospital of the Monterey Peninsula Mental Health Evaluation
* Western Regional Medical Command Mental Health Evaluation
* MAMC Mental Health Evaluation
* letter from Dr. Sxxxxx M. Lxxxxx (Clinical Psychologist)
* letter from his current psychiatrist
* Sanity Board Narrative Summary
* Letter of Input for Investigations memorandum
* Rebuttal to the Letter of Intent to Revoke Security Clearance memorandum
* Withdrawal of Resignation memorandum
* Declination of Promotion memorandum
* two letters to a Member of Congress (MC)
* two letters to the VA
* letter from the Wounded Warrior Project Alumni Program

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 September 1993 and he held military occupational specialty 11M (Fighting Vehicle Infantryman).  He was honorably released from active duty for the purpose of attending school, and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He was credited with completing 3 years, 11 months, and 6 days of active service.

2.  He was appointed in the USAR as a second lieutenant on 7 August 2003 and entered active duty.  He held the area of concentration of 35F (Human Intelligence Officer).  He served in Iraq from 21 January 2005 through 10 January 2006.  

3.  He was promoted to CPT on 1 October 2006.  He again served in Iraq from 9 March 2008 through 5 March 2009.

4.  He provided copies of the following:

   a.  A Behavioral Health memorandum, dated 12 April 2010, which shows the applicant was referred to the clinic by his command for attempting to have an unauthorized and inappropriate relationship with a teacher.  The examining psychologist stated and determined the following:

		(1)  The applicant denied any history of psychiatric problems or treatment. He described significant conflict with his wife and subsequent mild feelings of depression as a result of their conflict.  He denied experiencing any difficulties related to his two prior deployments.  What disturbed the applicant most about his deployments was "being stuck with people (i.e., Soldiers) he didn't like" and having to work long hours.  He didn’t like the people he was deployed with because he perceived them as beneath him.

		(2)  He was alert, fully oriented, and exhibited clear thought processes with no cognitive anomaly.  His mood was irritable and at times contentious while affect was constricted.  His attitude was somewhat irreverent and speech was frequently sarcastic.  He was inclined to devalue others, particularly women, assume a victim role, and projected a persistent lack of respect.

		(3)  He (the psychologist) found no evidence of hallucinations, delusions, or thought disorder.  Suicidal or homicidal ideation was denied.  Insight and judgment were poor.  It appeared from the applicant's discourse that he had manifested an impaired capacity for empathy and leadership.  He had difficulty incorporating Army values, maintaining proper deportment, and assuming responsibility for his behavior.  

		(4)  The applicant's personality was such that he was less likely to develop PTSD and lacked loyalty for both the Army and his Soldiers.  He tended to be demanding in narcissistic ways:  for attention, affection, and sympathy and was vulnerable to sexual seduction.  He did appear to be a security risk.

   b.  A Community Hospital of Monterey Peninsula Mental Health Evaluation, dated 23 April 2010, which shows the applicant was referred to that clinic for a "second opinion."  The examining medical doctor determined the following:

		(1)  The applicant reported, in the context of worsening stress and distress in his marriage, that he and his wife were undergoing a trial separation.

		(2)  He regretted making overt sexual advances to his Russian teacher.  He had envisioned just making tasteful statements of her attractiveness.  He was attracted to her and he couldn't deny that.

		(3)  He (the examining medical doctor) diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood.  The applicant appeared to be committed to the service of the country and the Armed Forces and did not present, at least in his civilian mind, as an overt security risk.

   c.  A Mental Health Evaluation memorandum, dated 7 May 2010, wherein the Chief, Forensic Psychiatry Section, Western Regional Medical Command, MAMC, stated he evaluated the applicant on that date and determined the following:

		(1)  The applicant did not have any severe mental disease or defect.  He had a rational mind, free of any delusions or hallucinations, and he had the capacity to reason and think abstractly.  He had the capacity to exercise good judgment and making informed decisions about his conduct and job performance.

		(2)  He diagnosed the applicant with an adjustment disorder with mixed disturbances of emotions and conduct and a personality disorder, not otherwise specified (NOS) with narcissistic, antisocial, and paranoid features.

		(3)  The applicant's diagnoses met retention standards for continued service in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  His case would not be referred to the Physical Evaluation Board. 

		(4)  The applicant was not imminently dangerous to himself or anyone else, but he was at risk for impulsive behavior due to his underlying maladaptive personality style.  A clinical treatment plan had been initiated for ongoing mental health treatment.  There was no psychiatric medicine that would improve his reactive unhappiness or personality disorder.  His symptoms would likely completely resolve once the acute, undesirable stress in his environment abated. 

		(5)  The applicant was not mentally-ill and he was responsible for his behavior and competent (as defined in the Manual for Court-Martial R.C.M. 706, 909, and 916(k)) to understand and adequately participate in any administrative action deemed appropriate.

   d.  A Letter of Input for Investigation memorandum, dated 15 December 2010, wherein the applicant's former commander stated:

		(1)  The applicant's misconduct regarding his attempted relationship with an instructor was the sole incident of misconduct that he was aware of during the applicant's time in the 229th Military Intelligence Battalion.

		(2)  It was his judgment that reassigning the applicant to training at Fort Huachuca, AZ, followed by a subsequent behavioral health assessment after he had made progress dealing with his personal and family challenges would provide two decisive benefits.  

   e.  An MFR, dated 24 June 2010, wherein the applicant's company commander recommended revocation of the applicant's security clearance as his command directed behavioral health evaluation called into questions his ability to hold a clearance.

   f.  A Rebuttal to the Letter of Intent to Revoke Security Clearance memorandum, dated 23 December 2010, wherein the applicant stated:

		(1)  The actions that resulted in his reprimand were short-term behaviors during one weekend.  At no time was the exchange of sensitive information ever an issue.  Because no relationship ever occurred, no facets of a relationship ever developed that would potentially make him vulnerable to exchange of classified information.

		(2)  The attempted contact with Ms. Vxxxxxx was in no way a security issue.  This incident did not involve any security violation.  It was caused by a severely negative marital situation.  That marital situation has concluded in divorce.  

		(3)  If he was denied a security clearance he would most immediately lose his opportunity to take command of Headquarters and Headquarters Company, 502nd Military Intelligence and as a commissioned officer and could well lose the ability to serve in the military and provide for his children.

   g.  A Mental Health Evaluation memorandum, dated 21 March 2011, wherein a psychologist with Behavioral Health Services, MAMC, stated the following:
		(1)  The applicant was referred for an evaluation following his attempts to gain an inappropriate relationship with a staff member of the DLI Institute.  The applicant received a reprimand for initial misconduct of violation of DLI's prohibited relationships policy.  Subsequent Behavioral Health evaluations questioned the applicant's ability to hold a security clearance.

		(2)  The applicant received mental health services a few times for marital and post-deployment adjustment in California.  He walked into the MAMC Behavioral Health Clinic on 11 February 2011 with concerns about loss of concentration, focus, and insomnia.  He was scheduled to see a psychiatrist and clinical psychologist.  On 17 February 2011, he experienced a significant emotional collapse and was brought to the emergency department and then to Behavioral Health Clinic by his commander (emergency command-directed evaluation).  

		(3)  On 1 March 2011, the applicant was seen for an intake with a clinical psychologist.  The psychologist noted the applicant did not present concerns and expressed a lack of interest in future psychotherapy.  The applicant stated he likely would not seek help from a provider connected with the military now or in the future, instead he would utilize his priest, chaplain, or friends.

		(4)  Based upon the history, recent clinical presentation diagnoses of adjustment disorder with depressed mood and personality disorder NOS are appropriate.  His behavioral and traits which were characteristic of both recent and long-term functioning suggested a personality disorder.  Such behaviors and traits had directly interfered with his social and occupational functioning.  He had shown a pattern of sensitivity to criticism of others, self-importance, entitlement, and lack of recognition for the experiences of other.

		(5)  He diagnosed the applicant with adjustment and personality disorders.  The applicant's condition was controlled through treatment or medications.  The applicant was currently taking medication and he rejected psychotherapy from providers associated with the military and professionals in the community.   

5.  His records contain the following:

   a.  A DA Form 4856 (Developmental Counseling Form), dated 3 June 2011, wherein the applicant received counseling again for sending texts of an unprofessional nature to a subordinate female officer within the battalion.  He had previously been counseled on that matter several weeks ago and it was clear that the first counseling session did not resonate.  He was directed not to send texts, emails, or other unprofessional messages to subordinate officers, noncommissioned officers, or Soldiers within the organization again.  The conduct would not be tolerated and if it continued he would be recommended for punishment under the Uniform Code of Military Justice (UCMJ) to the unit's leadership.  He was also advised that continued conduct of that nature could result in initiation of administrative action to include his separation from the service.

   b.  An MFR, dated 3 June 2011, which described the meeting between three members of the 502nd Military Intelligence Battalion and an Equal Opportunity (EO) Advisor regarding alleged sexual harassment incidents that took place on a number of occasions between them and the applicant.

   c.  The contested OER he received as a "Change of Rater" for the period 1 March 2009 through 13 September 2011 for his duties as an Assistant Battalion S3 of a Military Intelligence Battalion.  His rater was the Battalion S3, in the rank of MAJ, and his senior rater (SR) was the Battalion Commander, in the rank of LTC.  The OER shows in:

		(1)  Part II(d) (Authentication) – (This is a referred report, do you wish to make comments?) contains a checkmark in the block, indicating the senior rater (SR) identified the report as a referred report and a checkmark in the "No" block indicating the rated officer would not make comments related to the referred report.  

		(2)  Part IV (Performance Evaluation – Professionalism) the rater placed an "X" in the "No" blocks for Honor, Integrity, Courage, Loyalty, Respect, Selfless-Service, and Duty.

		(3)  Part IVb (Leader Attributes/Skills/Actions) the rater placed a "No" in the Mental, Conceptual, Physical, Interpersonal, Emotional, Technical, Tactical, Communicating, Planning, Developing, Decision-Making, Executing, Building, Motivating, Assessing, and Learning blocks.

		(4)  Part Va (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

Poor performance by the rated officer during this rating period.  [Applicant] was unable to complete simple tasks and assignments during his time in the battalion S3 shop; he lacks the capacity to prioritize tasks, conceptualize operations, execute missions, assess and learn.  [Applicant] was counseled on numerous occasions for his unprofessional digital communication with several female officers in the battalion, including the BN CDR.  This resulted in an EO and Sexual Harassment investigation, of which he was the subject; the allegations were founded.  Additionally, [Applicant] was counseled on the following items stemming from a battalion field exercise, they were:  missing formation, leaving an assigned place of duty, missing movement, being out of ranks and disobeying a direct order from a senior commissioned officer.  The rated officer has no future potential for promotion in the United States Army, lacks the values and officer ship required for continued service and demonstrates a complete disrespect for authority.  Do not promote and recommend release from active duty and removal from the Armed Service.

		(5)  Part Vc the rater entered the comment, "No potential for future service; do not promote."

		(6)  Part VII (SR), the SR placed an "X" in the "Other" block and entered the following comments:

[Applicant's] performance during this rating period was exceptionally poor.  Although very bright, he was unable to complete assigned tasks despite significant supervision.  He had to be counseled numerous times for his disrespectful behavior, failure to follow direct orders and inability to report for duty as required.  [Applicant] demonstrated that he is not interested in or capable of understanding and adhering to the Army standards of conduct.  His unprofessional behavior was detrimental to the good order of the battalion and ultimately led to a substantiated sexual harassment complaint and a restraining order emplaced by the local civilian court.  Rated officer did not provide a support form.  [Applicant] has absolutely no potential for further service in our Army.  Do not promote.

		(7)  Part VIId the SR entered the comment, "[Applicant] is not suited for any future assignment in our Army."

		(8)  The OER was signed by the rater on 25 October 2012, the SR on 2 November 2012, and applicant on 6 November 2012.

   d.  A DA Form 4856, dated 1 September 2011, wherein the applicant received counseling for inappropriate communication (email) to a subordinate female officer on the evening of 29 August 2011.  He was being referred to Forensic Psychiatry and he would attend all required appointments.  He was also advised that any further inappropriate behavior on his part would result in punitive action.

   e.  A DA Form 4856, dated 1 September 2011, wherein the applicant received counseling for disregarding a verbal order from his Battalion Commander to not leave the workplace for the day until he had reported to her.

   f.  An EO Complaint Review memorandum, dated 14 September 2011, wherein an EO Advisor stated the preponderance of the evidence did substantiate the findings of sexual harassment.  He concurred with the recommendation of the Investigating Officer (IO).  He recommended, at a minimum, the applicant should be considered for adverse action and extra training in EO and prevention of sexual harassment.  

   g.  A Legal Review of Army Regulation 15-6 Investigation (Formal EO Complaints of Sexual Harassment) memorandum, dated 15 September 2011, wherein a Judge Advocate officer found the investigation to be legally sufficient.

   h.  An annual DA Form 67-9 he received for the rating period 19 September 2011 through 13 September 2012 for his duties as an Assistant Brigade S3 for the 201st Battalion Surveillance Brigade.  His rater was the Brigade S3, in the rank of MAJ, and his SR was the Battalion Commander, in the rank of LTC.  The OER shows in:

		(1)  Part II(d) contains a checkmark in the block, indicating the SR identified the report as a referred report.  However, there is no checkmark in either the "Yes" or "No" block indicating the rated officer did not disclose whether or not he would make comments related to the referred report.  He also did not sign this report.

		(2)  Part IV the rater placed an "X" in the "No" blocks for Honor, Integrity, Courage, Loyalty, Respect, Selfless-Service, and Duty.

		(3)  Part IVb the rater placed a "No" in the Mental, Conceptual, Physical, Interpersonal, Emotional, Technical, Tactical, Communicating, Planning, Developing, Decision-Making, Executing, Building, Motivating, Assessing, and Learning blocks.

		(4)  Part Va the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

[Applicant] failed to perform the duties of Assistant Brigade S3.  He demonstrated continued disregard of authority by failing to show up to work or performing the required duties of an officer.  He was unable to complete any assigned task and was relegated to legal and medical appointments only.  Although he consistently received counseling on coming to work or formations, his behavior did not change.  During this rating period the applicant received a General Officer Article 15.  He is no longer of any value to the Army and is a detriment to the organization.

		(5)  Part Vc the rater entered the comment, "[Applicant] has no potential for future service; do not promote."

		(6)  Part VII the SR placed an "X" in the "Do Not Promote" block and entered the following comments:

[Applicant's] performance during this rating period was exceptionally poor.  He was unable to perform any tasks that would assist the Brigade S3 shop in their mission.  He received numerous counselings on his failure to be at his appointed place of duty to include from me, but showed no improvement.  [Applicant] received a General Officer Article 15 during this rating period and is unfit for continued military service.  [Applicant] did not provide a support form.  Do not promote.  The rated officer refused to sign.

		(7)  Part VIId the SR entered the comment, "[Applicant] is not suited for any future assignment in our Army."

		(8)  The OER was signed by the rater on 1 February 2013 and the SR on 12 April 2013.

6.  He also provided copies of the following:

   a.  A Tacoma Counseling for Men evaluation, dated 4 November 2011, which shows he underwent an evaluation and was diagnosed with generalized anxiety disorder with generalized anxiety.  

   b.  A letter, dated 3 January 2012, wherein a licensed clinical psychologist diagnosed the applicant with generalized anxiety disorder, with depressed features, severe.  He stated the applicant did not appear to be a significant security risk and he did have significant interpersonal issues which interfered with his ability to work well with others, especially females.  It was not clear if the applicant would be able to continue as an officer in the U.S. Army.  The stresses of his personal life, added to the conflict he now had with the Army regarding his behavior, was so great that it could make most sense for all concerned for the applicant to be medically discharged.  

7.  His records also contain a DA Form 458 (Charge Sheet), dated 9 February 2012.  This form shows his chain of command preferred court-martial charges against him for one specification each for: 

* wrongfully and dishonorably sending an inappropriate email to a subordinate female officer on or about 29 August 2011
* wrongfully and dishonorably using offensive language about a subordinate female officer in a text message to another officer on or about 2 December 2011
* willfully disobeying a lawful order from his superior commissioned officer on or about 29 August 2011 not to text or email the subordinate officer unless strictly professional and work-related, or words to that effect
* willfully disobeying a lawful order from his superior commissioned officer between 14 May and 3 June 2011 not to text or email unprofessional messages to two subordinate officers
* willfully disobeying a lawful order from his superior commissioned officer to return to the battalion's field training exercise on or about 12 August 2011
* behaving himself with disrespect toward his superior commissioned officer by sending her disrespectful text messages on or about 6 July 2011
* failing to go at the time prescribed to his appointed place duty on or about 3 July, 8 and 30 August, and 21 November 2011
* absenting himself from his place of duty on or about 11 August and 17 December 2011

8.  He further provided copies of the following:

* Unqualified Resignation in Lieu of Court-Martial memorandum (undated) wherein he voluntarily tendered his resignation from the Army to be effective 1 January 2012
* Withdrawal of Resignation memorandum, dated 18 March 2012, wherein he requested his desire to withdraw his resignation from the Army effective immediately

9.  His records further contain the following:

   a.  A Findings from Article 32 memorandum, dated 31 May 2012, which stated the applicant was being charged with conduct unbecoming an officer and a gentlemen. 

   b.  A Sanity Board (Narrative Summary) memoranda, dated 11 July 2012, which shows the applicant with the aforementioned court-martial charges and the board found that the applicant, did not at the time of the alleged criminal actions have a severe mental disease or defect and he did not currently have a severe mental disease or defect.

   c.  An Advice on Disposition of Court-Martial Charges memorandum, dated 19 July 2012, wherein a member of the Staff Judge Advocate concluded that the allegations in the charges and specifications were warranted by the evidence in the Article 32 Investigation.  He recommended all charges and specifications be referred to a general court-martial.  On 19 July 2012, the convening authority referred the charges to a court-martial.

   d.  Email correspondence, dated 16 August 2012, wherein the applicant's counsel stated that the applicant would plead guilty to everything at an Article 15 with the condition he would submit an unqualified resignation and accept a general discharge.

   e.  A United States Army, Fourth Judicial Circuit, Offer to Plea, dated 17 August 2012, wherein the applicant, after consulting with counsel, entered a "not guilty" plea to the charges against him.

   f.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) wherein the applicant accepted nonjudicial punishment on 22 August 2012 for wrongfully and dishonorably using offensive language about a female subordinate officer in a text message to another officer, disobeying lawful orders to not text unprofessional messages, behaving himself with disrespect towards his superior commissioned officers, failing to go to his appointed place of duty on three occasions, and absenting himself from his unit on two occasions.  His punishment included a suspended forfeiture of $3,067.00 pay per month for 2 months and receipt of a Letter of Reprimand.  He did not appeal the punishment.

10.  In August 2012, he voluntarily tendered his resignation from the Army.

11.  On 29 August 2012, the applicant's battalion commander recommended approval of the applicant’s request for unqualified resignation with a general discharge.  He stated that while awaiting court-martial and finally offering his plea the applicant made no contribution to the unit.  The applicant was in fact a tremendous burden.  The applicant was not worthy of an honorable discharge since he was unable to meet basic Soldier standards of being in the right place, on time, and in the right uniform for over a year without constant oversight.

12.  On 2 October 2012, the separation authority approved his resignation with a general discharge.

13.  On 3 October 2012, the Deputy Assistant Secretary of the Army (Review Boards (DASA (RB)), after a review of the Resignation for the Good of the Service in Lieu of General Court-Martial, denied acceptance of the applicant's resignation where he conditioned it on receiving an honorable discharge.  The DASA (RB) directed return of the case to the General Court-Martial Convening Authority for action as he deemed appropriate.

14.  On 17 October 2012, he was issued a General Officer Letter of Reprimand for reprehensible conduct by repeatedly using unprofessional, defamatory, and insulting language about other officers within his brigade and battalion command, particularly toward females.  

15.  In December 2012, he was considered and selected for promotion to MAJ by the Fiscal Year 2012 (FY12) Operations Support (OS), Promotion Selection Board.

16.  On 12 December 2012, he acknowledged receipt of the memorandum dated 11 December 2012, Subject:  Promotion Review Board Notification.  He elected to submit a rebuttal after a review of his referred OER for the period 1 March 2009 through 13 September 2011.

17.  On 17 December 2012, he submitted a request for declination of promotion in lieu of undergoing a Promotion Review Board.

18.  On 19 December 2012, his request was approved and it was recommended that his name be deleted from the FY12 OS, Promotion Selection Board.

19.  On 24 January 2013, the Secretary of the Army directed the removal of the applicant's name from the FY12, OS Promotion Selection Board List.

20.  He was discharged from active duty in the rank of CPT on 22 March 2013, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5.  His service was characterized as under honorable conditions, general.  He was credited with completing a total of 15 years, 3 months, and 29 days of active service. 

21.  He also provided copies of the following:

   a.  A letter, dated 10 April 2013, wherein the Office of the Chief of Legislative Liaison advised a member of Congress regarding the applicant of the following:

		(1)  Officials from the Western Regional Medical Center advised the applicant has been undergoing legal difficulties since 2010 and throughout this time has been seen by 20 behavioral health providers of varying disciplines and from different departments within MAMC.  

		(2)  Of those 20 behavioral health providers, none found PTSD symptoms. Twelve providers completed independent evaluations substantiating diagnoses of stress and adjustment problems related to his ongoing legal issues and the loss of his security clearance.  Most providers noticed features of personality disorder.  The most recent routine care was in March 2012, though he had several contacts on a walk-in or emergent basis after that.

		(3)  The applicant's treatment focused on his disagreement with the revocation of his security clearance.  The applicant made little to no effort to work on his behavioral health wellness, but instead focused on his perceived mistreatment by behavioral health workers and unit command.  

		(4)  The applicant had ongoing UCMJ and occupational stressors during the entire time of his evaluation and treatment.  The applicant was often accusatory and threatening to providers, which made a clinical diagnosis difficult to assess.

		(5)  On 6 December 2012, the MAMC arranged an evaluation by a senior and impartial psychiatrist profiling officer who was not associated with any of the previous 19 clinicians.  The applicant made it clear, verbally and electronically, that he did not consent to evaluation "by a Madigan clinician."  The evaluation scheduled on 6 December 2012 was not completed because the applicant refused to participate.

		(6)  The applicant repeatedly refused to be seen by clinicians capable of initiating a physical profile or determining the appropriateness of an MEB.  Two additional appointments were scheduled for the applicant and his command on 1 and 14 February 2013 to hear his concerns.  Unfortunately, the applicant refused psychiatric evaluations on both occasions.

   b.  A letter, dated 22 August 2014, wherein the Commander, MAMC advised an MC of the following.  

		(1)  The MAMC and the Department of Behavioral Health could not provide information regarding decisions or officials from Western Regional Medical Command.  The applicant had the right to submit a request under the Freedom of Information Act for the information he sought.

		(2)  Similarly, no civilian contractors were ever utilized by the Fusion Cell.  For that reason the applicant's request was not valid.  They regretted that they were unable to assist the applicant.

22.  Two referred OER memoranda, dated 12 and 15 April 2013, stated the applicant failed to respond within the suspense period given to him for comments and he failed to complete his acknowledgement.

23.  He further provided a letter, dated 11 February 2015, wherein he was welcomed as a new member of the Wounded Warrior Project Alumni Program.

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating.  

25.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; and/or may prejudice the best interests of the government if the individual were to remain in the military service.

26.  Army Regulation 600-8-24 sets forth the basic authority for separation of officer personnel.  The regulation states in:

   a.  Paragraph 1-2 – If a commissioned officer has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed as follows:  A commissioned officer under investigation for an offense chargeable under the UCMJ that could result in dismissal or punitive discharge may not be referred for or continue disability processing unless:

* the investigation ends without charges
* the commander exercising proper court-martial jurisdiction dismisses the charges
* the commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence

   b.  Paragraph 3-5 – Any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when:  action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending.

   c.  Paragraph 4-3 – An officer referred or recommended for elimination under this chapter who does not meet medical retention standards will be processed through both the provisions of this regulation and through the MEB/PEB process as described in paragraph 1-22.  

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

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

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

27.  Army Regulation 600-8-29 (Officer Promotions) prescribes the promotion function of the active duty military personnel system.  Paragraph 5-5 states an officer may decline a promotion by submitting a memorandum before the effective date of promotion.  Declination is irrevocable on or after the effective date of promotion.  The name of an officer who declines promotion will be deleted from the promotion list by Headquarters, Department of the Army.  The officer will not be eligible again for promotion as a result of action by the promotion selection board or special selection board.  Deletion from a promotion list based on declination of promotion will not constitute a non-selection for promotion.

28.  Army Regulation 623-3 prescribes the policies for completing the OER and associated documents that are the basis for the Army's Evaluating Reporting System.  The regulation states in:

   a.  Paragraph 4-4 – alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's or commandant’s attention by the rated Soldier or anyone authorized access to the report.  An appeal will be supported by substantiated evidence.

   b.  Paragraph 4-8 – because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible.  Substantive appeals will be submitted within 3 years of an OER “THRU” date. 

   c.  Paragraph 4-11 – the burden of proof rests with the appellant accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.

29.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF Management Program and it composition.  The regulation states once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

30.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR).  It is ABCMR's policy to consider cases based on the date the application is received.  Current policy only provides for expediting cases in extraordinary circumstances, such as imminent death.  

31.  Army Regulation 15-185 states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant raises five issues in his application to the Board.  He contends his records should be corrected to show: 

* a medical discharge
* promotion to MAJ
* removal of the OER for the period 1 March 2009 through 13 September 2011 from his OMPF
* expeditious processing of his application
* a personal appearance before the Board

2.  With respect to expediting the applicant’s case, the ABCMR usually processes cases in the order they are received.  The Board understands the circumstances that bring about applications to the ABCMR; many are urgent, and for all other kinds of cases, Soldiers who file the same kind of application are usually in similar circumstances and often have similar needs to have their cases processed quickly.  The Board understands the effects that processing times can have on Soldiers and their families.  However, it would not be appropriate for the Board to give preferential treatment to one Soldier over another, and disadvantage a Soldier or another by delaying one case to first process another that was filed later.  Therefore, no matter how short or long the normal processing time, the Board normally processes cases in order based on when they were received.

3.  With respect to the personal appearance, the applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.




4.  With respect to a medical discharge: 

   a.  In April 2010 and June 2011, the applicant was diagnosed with an adjustment disorder.  He subsequently received counseling for sending unprofessional texts and an inappropriate communication (email) to a subordinate female officer in the battalion.  A subsequent Sanity Board determined that he did not at the time of the alleged criminal actions have a severe mental disease or defect and he did not currently have a severe mental disease or defect.
   
   b.  In lieu of pending court-martial charges he submitted a request for unqualified resignation and the separation authority approved his resignation.  He was discharged under the provisions of Army Regulation 600-8-24,   paragraph 3-5, and issued a general discharge.

   c.  The issuance of a discharge under the provisions of Army Regulation   600-8-24, paragraph 3-5, required the applicant to have voluntarily, willingly, and in writing, request a voluntary resignation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no evidence that would indicate the contrary.  In fact, the evidence shows he refused to participate in the Army's determining the appropriateness of an MEB.

   d.  There is no evidence of record and he provides none that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  He does not provide any service medical records to corroborate he was physically unfit at the time of his discharge in 2013.

   e.  He has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

5.  With respect to his promotion to MAJ:

   a.  He was selected for promotion to MAJ; however, prior to accepting this promotion he elected to decline it in lieu of undergoing a Promotion Review Board.  His request was approved on 19 December 2012.  The Secretary of the Army removed his name from the promotion selection list on 24 January 2013.  He was discharged in the rank of CPT on 22 March 2013.  
   b.  In accordance with the governing regulation, based on his declination of promotion to MAJ and its approval, his name was appropriately removed from the promotion list.  Declination is irrevocable on or after the effective date of promotion.  Therefore, he is no longer eligible for promotion to MAJ under Army Regulation 600-8-29.
   
   c.  There is no evidence and he provided none showing he was erroneously or unjustly denied promotion to MAJ prior to his discharge.  In view of the forgoing, he is not entitled to the requested relief.
   
6.  With respect to removal of the contested OER:

   a.  The contested OER and a subsequent OER show he performed poorly during the rating periods in two separate battalions.  On the contested OER his SR commented, "the applicant was counseled on numerous occasions for his unprofessional digital communication with several female officers in the battalion, including the battalion commander, and that resulted in an EO and Sexual Harassment investigation."  The investigation found the allegations to be substantiated.  General court-marital charges were preferred against him for his actions and he was subsequently punished under the provisions of Article 15 of the UCMJ.  

   b.  There is no evidence and he did not provide sufficient evidence refuting the ratings contained in the contested OER.  It appears this OER represents a fair analysis of his demonstrated performance during the period in question and that he has not shown otherwise.

   c.  The contested OER was a referred OER.  The available evidence shows he did not use diligence in appealing, which was his right to do if he believed it was unfair, the contested OER through the administrative appeals process in accordance with regulatory guidance.  

   d.  There is also no evidence of record and insufficient evidence was provided to show this OER contains material error or is inaccurate.  There is no evidence and none was provided showing the OER was not processed in accordance with applicable laws and regulations.  

   e.  In accordance with regulatory guidance there must be compelling evidence to support the deletion or amendment of a report or the removal of a properly-completed, facially-valid DA Form 67-9 from a Soldier’s records.  Absence evidence meeting this regulatory standard there is an insufficient evidentiary basis to support the requested request.  
   
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __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.



ABCMR Record of Proceedings (cont)                                         AR20150002359





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ABCMR Record of Proceedings (cont)                                         AR20150002359



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