RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 March 2007
      DOCKET NUMBER:  AR20060011192


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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, that his two Articles 15 be set
aside, that all rights and privileges be restored, and that the Articles 15
be removed from his records.

2.  The applicant defers to counsel.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); his separation orders; his Physical Evaluation
Board (PEB) packet; an extract from Army Regulation 40-501; his Enlisted
Record Brief; a printout of his records from the Enlisted Distribution
Accounting System; a History Brief, dated 22 March 2006; a head injury fact
sheet; a Department of Veterans Affairs Progress Note, dated 28 July 2005;
a discharge summary, dated April 2005; a psychological evaluation, dated 25
February 2005; a line of duty determination packet, dated 14 March 2002; an
Article 15, dated 26 July 2004; and an Article 15, dated 20 December 2004.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant had a good record until he suffered a head
injury in January 2002 when he fell down two flights of stairs.  Surgical
intervention was required for a depressed right frontotemporal skull
fracture with underlying acute epidural hematoma.  A month later the
applicant was deployed to Iraq.  While in Iraq, he was removed from his
military occupational specialty (MOS) due to an inability to perform
because of the Major Depression acquired as a result of his head injury.

2.  Counsel states the applicant [re]deployed to Germany in January 2004.
In July 2004 and again in December 2004, he was given nonjudicial
punishment action with a forfeiture of rank and a reduction of pay on each
occasion.  Finally, in February 2005, the applicant was sent for an
evaluation and was diagnosed with a Major Depressive Disorder and
personality changes secondary to his head injury.

3.  Counsel states that, although not always visible, a traumatic brain
injury can cause enduring physical, emotional, intellectual, and social
changes for the survivor.  Some symptoms may occur immediately but some may
become more noticeable over time as the person returns to his or her daily
lifestyle.  When the record is reviewed, it will reflect that after the
occurrence of his head injury the applicant was not himself.  The residual
effects of the head injury did indeed affect his ability to perform his
duties not only in his MOS, but also in his basic duties as a Soldier.
4.  Counsel states that Army Regulation 40-501, paragraph 2-26(e)(2) states
a member with a severe head injury is unfit for a period of five years.
Paragraphs 3-32 through 3-34 state mental disorders (such as suffered by
the applicant) can be unfitting for further service as the condition will
interfere with the performance of duties and social adjustment.  The local
command should have referred the applicant for further medical evaluation
in accordance with Army Regulation      40-501 after his injury.  Instead,
they kept him and deployed him to Iraq, where he could not perform his
duties.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  The applicant enlisted in the Regular Army on 23 August 2000.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 15R (AH-64 Attack Helicopter Repairer).

3.  On 19 January 2002, the applicant fell down a flight of stairs in his
barracks and sustained a head injury.  The injury resulted in an epidural
hematoma that was surgically evacuated by Neurosurgery.  The line of duty
investigating officer determined no alcohol was involved and it was an
accident.  The injury was found to have been incurred in the line of duty.

4.  Around July 2002, the applicant was assigned to Germany.  He was
promoted to Specialist, E-4 on 1 November 2002.  He deployed to Kuwait in
February 2003.  He redeployed back to Germany in January 2004.

5.  On 26 July 2004, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for two
specifications of failing to obey a lawful order from a noncommissioned
officer and five specifications of failing to go his appointed place of
duty.  His punishment was a reduction to Private First Class (PFC), E-3; a
forfeiture of $369.00 pay; extra duty for  14 days; and restriction.

6.  On 20 December 2004, the applicant accepted NJP under Article 15, UCMJ
for five specifications of failing to go to his appointed place of duty;
three specifications of failing to obey a lawful order from a
noncommissioned officer; one specification of behaving with disrespect
towards his superior commissioned officer; and one specification of going
from his appointed place of duty without authority.  His punishment was a
reduction to Private, E-2; a forfeiture of $312.00 pay for one month, extra
duty for 14 days, and restriction for 14 days.

7.  The applicant’s Psychiatric Medical Evaluation Board (MEB) Narrative
Summary states collateral information revealed that his personality was not
the same since his fall.  His personality change seemed to escalate towards
the end of his deployment in Iraq, where he was suspended from his duties
as a mechanic.  Upon arrival [back] in Germany, he sought medical attention
and became very distressed that not enough was being done to address his
complaints of poor concentration and dysphoric (disquiet, restlessness,
malaise) mood.  He was started on Prozac (an antidepressant) and Adeall
(sic, Adderall, for the treatment of attention deficit hyperactivity
disorder, difficulty focusing, or controlling actions) with little
subjective improvement.  His behavior and motivation continued to
deteriorate, which resulted in two Articles 15 and multiple counseling
statements for insubordination and dereliction of duty.

8.  The Psychiatric MEB Narrative Summary stated the applicant was given
  60 days leave with the thought that he needed some time off.  While on
leave, he was admitted into a civilian psychiatric facility for eleven days
where he was diagnosed with Major Depressive Disorder and neurological
deficits.  He was sent back to Germany where he had difficulty integrating
into the military environment, with the same [medical] complaints as
before.  After being evaluated by mental health he was sent to Landstuhl
Regional Medical Center, and subsequently transferred to Walter Reed Army
Medical Center.

9.  The applicant was diagnosed with personality change due to post-
concussive syndrome, unspecified type, manifested by a persistent
personality disturbance that represented a change from his previous
characteristic personality pattern that was temporarily correlated with a
traumatic head injury and not better accounted [for] by another mental
disorder.  He was also diagnosed with Major Depressive Disorder, single
episode, in partial remission and with post-concussive syndrome incurred
when he fell.  He was referred to a PEB.

10.  On 9 May 2006, an informal PEB found the applicant to be unfit due to
personality changes secondary to traumatic brain injury (epidural hematoma)
from a fall with a head injury in January 2002.  The personality changes
were manifested by persistent personality disturbances that caused
clinically significant distress and impairment in social and occupational
functioning.  The PEB recommended the applicant be placed on the Temporary
Disability Retired List (TDRL).

11.  On 19 July 2006, the applicant was released from active duty and
placed on the TDRL the following day.  His DD Form 214 shows he separated
in the rank and grade of PFC, E-3 with a date of rank of 1 December 2005.
His separation orders show he was placed on the TDRL in the rank and grade
of PFC, E-3.  There is no indication that a grade determination was
completed prior to his placement on the TDRL as required pursuant to Title
10, U. S. Code, section 1372.

12.  Army Regulation 27-10 prescribes policies and procedures pertaining to
the administration of military justice.  It states a commander will
personally exercise discretion in the nonjudicial process, evaluate the
case to determine whether proceedings under Article 15 should be initiated,
and determine whether the Soldier committed the offense where Article 15
proceedings are initiated and the Soldier does not demand trial by court-
martial.  It states the authority to impose nonjudicial punishment charges
a commander with the responsibility of exercising the commander’s authority
in an absolutely fair and judicious manner. The commander of the alleged
offender must ensure that the matter is investigated promptly and
adequately.  The investigation should cover whether an offense was
committed, whether the Soldier was involved, and the character and military
record of the Soldier.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  In pertinent part, it states the mere presence of an
impairment does not, of itself, justify a finding of unfitness because of
physical disability.

14.  Army Regulation 40-501 governs medical fitness standards for
enlistment and procurement, retention and separation, including retirement.
 Chapter 2 pertains to enlistment and procurement standards.  Chapter 3
pertains to retention standards.  Paragraph 3-34 (Dementia and other
cognitive disorders due to general medical condition) states persistence of
symptoms or associated personality changes sufficient to interfere with
performance of duty or social adjustment is a cause for referral to an MEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contended that the applicant’s traumatic
brain injury, incurred in January 2002, resulted in personality changes
that led to the misconduct for which the applicant was given the July and
December 2004 Articles 15.

2.  Counsel contended in part that Army Regulation 40-501, paragraph 2-
26(e)(2) states a member with a severe head injury is unfit for a period of
five years.  This paragraph of the regulation does not apply to the
applicant.  Chapter 2 governs enlistment medical fitness standards.  An
individual with a history of a severe head injury is unfit for enlistment
for a period of five years.

3.  Counsel also contended that paragraphs 3-32 through 3-34 (paragraph 3-
34 appears to be more appropriate for the applicant’s circumstances) state
mental disorders can be unfitting for further service as the condition will
interfere with the performance of duties and social adjustment.  Counsel
does not quite quote the paragraph correctly.  It does not state that the
condition will interfere with the performance of duties and social
adjustment; it states when the condition interferes with the performance of
duties and social adjustment then the condition is a cause for referral to
an MEB.  Nevertheless, this contention appears to have some merit.

4.  Merely having a medical condition was not a reason for the applicant’s
local command to have referred him for further medical evaluation after his
injury, as counsel contended should have been done.  There was no evidence
prior to his deployment that he could not perform his duties; therefore,
there was no reason to refer him to an MEB.

5.  The applicant’s Psychiatric MEB Narrative Summary stated, however, that
collateral information revealed that his personality was not the same since
his fall and that his personality change seemed to escalate towards the end
of his deployment in Iraq.  Upon arriving back in Germany, the applicant
sought medical attention, and he was started on Prozac and Adderall with
little subjective improvement.  His behavior and motivation continued to
deteriorate.

6.  Army Regulation 27-10 states the authority to impose nonjudicial
punishment charges a commander with the responsibility of exercising his
authority in an absolutely fair and judicious manner. The commander’s
investigation should cover whether an offense was committed, whether the
Soldier was involved, and the character and military record of the Soldier.


7.  The character of the applicant prior to his deployment appears to have
been unblemished by any derogatory information.  His military record
included the facts that he suffered a severe head injury in January 2002
and that after he returned from Iraq he was receiving medical attention and
medication for psychiatric disorders.  It appears it would have been
reasonable for the applicant’s commander to have referred him for a mental
health evaluation before administering NJP rather than after twice
administering NJP.

8.  Once the applicant was referred to an MEB, he was diagnosed with
personality change due to post-concussive syndrome, unspecified type,
manifested by a persistent personality disturbance that represented a
change from his previous characteristic personality pattern that was
temporarily correlated with a traumatic head injury.  Any reasonable doubt
that the acts of misconduct that led to the applicant’s two Articles 15
were the result of his previous traumatic brain injury, and thus beyond his
ability to effectively control, should be resolved in his favor.

BOARD VOTE:

__wdp___  __pms___  __jlp___  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:

     a.   setting aside the two Articles 15, dated 26 July 2004 and 20
December 2004, and restoring to him all rights and privileges he lost when
the punishment from those Articles 15 were imposed;

     b.  expunging from his Official Military Personnel File the two
Articles 15, dated 26 July 2004 and 20 December 2004; and

     c.  in accordance with Army Regulation 15-185, following completion of
the administrative corrections directed herein, this Record of Proceedings
and all documents related to this appeal be returned to this Board for
permanent filing.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011192                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070313                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |126.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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