RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 April 2005
      DOCKET NUMBER:  AR20040002985


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Curtis Greenway               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reinstatement of his rank and pay
grade of specialist/E-4 (SPC/E-4) and any back pay due as a result.

2.  The applicant states, in effect, that the misconduct that resulted in
the nonjudicial punishment (NJP) action that resulted in his reduction from
SPC/E-4 to private/E-1 (PVT/E-1) was the result of a mental disorder that
ultimately led to his medical retirement.

3.  The applicant provides a supporting letter from his military
psychiatrist in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 16 May 2000.  He was trained in, awarded and served
in military occupational specialty (MOS) 91M (Hospital Food Service
Specialist).

2.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
the applicant served in Kuwait from 7 March through 18 July 2003.  His
Enlisted Records Brief (ERB) shows that he was promoted to the rank and pay
grade of SPC/E-4 on 16 May 2000 and that this is the highest rank he held
and in which he served while on active duty.  The ERB also shows that he
was reduced to PVT/E-1 on 8 June 2003, while serving in Kuwait.

3.  On 14 November 2003, a Medical Evaluation Board (MEB) convened at Fort
Riley, Kansas, to evaluate the applicant.  The MEB found the applicant
suffered from a schizoaffective disorder, depressed type that originated in
May 2003, and from a post traumatic stress disorder that originated in
August 2003.  The MEB concluded that the applicant no longer met the
retention standards of Army Regulation 40-501 and it referred the
applicant’s case to a Physical Evaluation Board (PEB) for evaluation.

4.  The MEB summary completed by the attending psychiatrist at Fort Riley
stated that the applicant experienced a deteriorating course of mental
illness for a period of approximately three years.  The psychiatrist stated
that despite showing signs of mental illness in the year 2000, the
applicant’s condition did not begin to interfere with his military duties
until the spring of the year 2003, when he was notified that he would be
deployed to Iraq.

5.  The MEB summary further states that the applicant was very upset with
the news of his deployment because he planned to separate in a few months
at the expiration of his term of service (ETS) and his terminal leave had
already been approved.  At this time, given he was acting oddly; he was
referred to the community mental health service clinic for assessment.
During this assessment, the applicant’s thought processes were fairly
concrete.  However, upon his arrival in the theater, he began to have
problems quickly.  He had a number of interpersonal conflicts with other
Soldiers and he perceived these interactions as extremely hostile.  The
applicant began to feel persecuted and paranoid that other Soldiers were
out to do him harm.

6.  In the MEB summary, the psychiatrist also stated that sometime in April
2003, after the applicant was required to stand guard duty for a period of
30 days, he wanted to go to religious services.  The applicant was told he
had to make a special request to go to services when he was assigned guard
duty; however, the applicant proceeded to religious services without asking
permission first.  The doctor stated that during these religious services,
while listening to the sermon, the applicant developed a delusional belief
that he had been told by God that he should not speak for the rest of the
day.  After the service ended, the applicant was approached by members of
his chain of command and he was asked for an explanation for why he was not
at his appointed place of duty.  Since the applicant had been given a
special message from God, he did not answer.  This infuriated the members
of the chain of command and the applicant believes they became physically
and emotionally abusive toward him.  The applicant received NJP under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for
this event, and other disorganized behaviors.

7.  The MEB summary indicates the applicant was returned to Fort Riley in
July 2003 and was seen at the community mental health clinic, during which
time he reported feeling unduly treated in Kuwait, but that he was looking
forward to his imminent ETS departure from the Army.  On 13 August 2003,
the applicant returned to the clinic with the complaint of anxiety
(manifested by nightmares, irritability, and social isolation) when
remembering his recent experiences in Kuwait and was prescribed seroquel
for anxiety relief.  Over the next week, the applicant returned to the
clinic three more times with similar complaints, and medication adjustments
were made.

8.  The attending psychiatrist also stated in the MEB summary that the
applicant returned to the mental health clinic on 29 September 2003.  At
this time, he was acutely agitated and angry with his chain of command.  He
just realized that he was going to be separated from the Army as a PVT/E-1
and not as a SPC/E-4. The applicant was told he was reduced to PVT/E-1 via
an Article 15 he had received in Kuwait, but he refused to accept this.
The applicant stated that the Article 15 did not happen because no one had
given him a copy of the paperwork.  The applicant was fixed and concrete
about this point.  Because of his agitation over this issue, he was
admitted to impatient psychiatry at Stormont-Vail West in Topeka, Kansas.
He remained hospitalized for three days and upon his discharge had
clinically improved.  During his separation processing, he was again
hospitalized after becoming agitated over this same issue.  He remained
hospitalized for 30 days and was diagnosed with schizoaffective disorder,
and he was returned to duty once he was stabilized.  While at home on
convalesant leave, the applicant’s father found him very confused and
disorganized, and doubted his current medication had made a difference in
his level of mental illness.

9.  The military records of the applicant that was provided for Board
review do not include a copy of the Article 15 in question.  The facts and
circumstances available are limited to those discussed in the medical
documents provided.

10.  On 18 December 2003, a PEB convened at Fort Lewis, Washington to
consider the applicant’s case.  The PEB found the applicant was physically
unfit and recommended a combined disability rating of 30 percent based on
diagnosed condition of schizoaffective disorder, and that he be placed on
the Temporary Disability Retired List (TDRL).

11.  On 5 January 2004, the applicant was honorably released from active
duty (REFRAD) under the provisions of Army Regulation 635-40, by reason of
physical disability-temporary.  The separation document (DD Form 214) he
was issued upon his separation shows he had completed a total of 3 years, 7
months and 20 days of active military service and held the rank and pay
grade of
PVT/E-1 at the time.  The DD Form 214 also shows that during his tenure on
active duty, the applicant earned the National Defense Service Medal, Armed
Forces Expeditionary Medal and Army Service Ribbon.

12.  The applicant’s military psychiatrist provided a statement in support
of this application.  He states that he strongly believes that the
applicant was wrongly punished for behavior that he did not have the
capacity to control.  He claims he first saw the applicant just prior to
his deployment to Kuwait, when the applicant was just days away from
separating at his ETS.  He states that when he first saw the applicant, he
seemed stunned and confused about why he was going to Iraq. The doctor
states that at that time, he attributed the applicant’s abnormalities to
anxiety.  In retrospect, he was clearly wrong.  He claims the applicant
quickly deteriorated after his deployment to Kuwait in the spring of 2003.
While in Kuwait, the applicant experienced overtly delusional thoughts and
grossly disorganized behaviors.  In his psychiatric opinion, by the time
the applicant disobeyed orders and violated various articles of the UCMJ,
which led to his Article 15, he was actively psychotic.

13.  The psychiatrist further states that in the state the applicant was in
at the time, as a direct result of his mental illness, he was unable to
appreciate the nature and quality or wrongfulness of his conduct and should
not have been held criminally responsible for his behavior.  Further, at
the time of his Article 15, the psychiatrist believes the applicant was not
competent to assist in his own defense, and it was inappropriate for the
Army to have proceeded with the UCMJ action that stripped the applicant of
his rank.

14.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.  Paragraph 3-28 provides
guidance on setting aside punishment and restoration of rights, privileges,
or property affected by the portion of the punishment set aside.  It
states, in pertinent part, that the basis for any set aside action is a
determination that, under all the circumstances of the case, the punishment
has resulted in a clear injustice.  "Clear injustice" means that there
exists an unwaived legal or factual error that clearly and affirmatively
injured the substantial rights of the soldier.  An example of clear
injustice would be the discovery of new evidence unquestionably exculpating
the soldier.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the mental illness that led to his
disability retirement was the major contributing factor to the misconduct
that led to his reduction via Article 15 and the supporting documents he
provided were carefully considered.

2.  The medical evidence of record in this case confirms the applicant
suffers from a mental illness that ultimately resulted in him being found
unfit for retention and resulted in his separation, by reason of disability
and his placement on the TDRL.  The MEB and PEB proceedings confirm the
onset of the applicant’s significant mental illness symptoms was in early
2003.  Therefore, it appears he was suffering from this serious disability
at the time he accepted the nonjudicial punishment action that resulted in
his reduction in June 2003.

3.  Based on the medical evidence of record and the supporting medical
statement from the attending military psychiatrist, it appears the
applicant was not able to control the behavior that resulted in the
misconduct that led to his reduction and/or to adequately participate in
his own defense during the Article 15 hearing.  As a result, the regulatory
clear injustice standard required to support setting aside the reduction
portion of the NJP imposed on the applicant has been satisfied in this
case.

4.  In view of the facts of this case, and given the PEB’s ultimate
unfitness determination in the applicant’s case, it would be appropriate
and serve the interest of justice to correct the applicant’s record by
setting aside the applicant’s reduction and restoring his rank and pay
grade to SPC/E-4 and his original date of rank of 16 May 2000.

5.  Further, based on the restoration of his rank, the applicant’s record
should be corrected to show he held the rank and pay grade of SPC/E-4 on
the date of his separation and that he was placed on the TDRL in that rank
and pay grade.  It would also be appropriate to provide the applicant any
back active duty pay and allowances due from 8 June 2003 through his
separation on 5 January 2004, and any back retired pay due from 6 January
2004 through the present.
BOARD VOTE:

___SLP _  ___JNS__  ___CG__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
setting aside the applicant’s 8 June 2003 reduction and restoring his rank
and pay grade to Specialist/E-4; by providing him any back active duty pay
and allowances due between 8 June 2003 and his separation on 5 January
2004; by providing him any back retired pay due from 6 January 2004 through
the present; and by providing him a corrected separation document that
reflects his rank and pay grade as specialist/E-4 and his date of rank as
16 May 2000.




            ____John N. Slone _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002985                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/12                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/01/05                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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