RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2007
      DOCKET NUMBER:  AR20070011575


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. David W. Tucker               |     |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 the DA Form 2627 (Record of
Proceedings Under Article 15, UCMJ), dated 1 April 2005, be removed from
his record and that the punishment imposed be set-aside; that his rank be
restored to staff sergeant (SSG); and that his time lost due to being
absent without leave (AWOL) from 22 February through 4 March 2005 and from
23 June through
15 July 2005, be expunged from his record.

2.  The applicant states, in effect, he believes that a Soldier should not
be punished for being ill.  He states that he is certain that this is what
happened in his case, as with many other Soldiers and indicates that just
because it is common practice, this does not make it right.  He states that
he was listed as AWOL from 25 February through 4 March 2005, which he
believes was the result of a combination of events.  He claims that during
the months leading up to the incident, he had been seeing various doctors
at the mental health clinic for what was eventually diagnosed as a Post
Traumatic Stress Disorder (PTSD).  He states that for three weeks prior to
and during the period of AWOL, he reported for appointments at the clinic,
but was not seen by the doctors due to patient overloads and doctor
illnesses.  As a result, his condition worsened to the point where he was
not able to accomplish simple tasks, which included driving.

3.  The applicant further states he then failed to report to the unit and
remained at home until members of his command came to get him 8 days later.
 This resulted in his receiving an Article 15 that resulted in his
reduction from staff sergeant (SSG) to sergeant (SGT), 45 days restriction
and extra duty, and the loss of two and one half months of pay, which was
suspended.  He claims at this time, he was left wondering what happened to
him because he had not chosen for any of this to happen.  He claims it was
out of his control and he was helpless to do anything about it.  He claims
it seemed that no one was able or willing to help him.  He states that
during the next six months, he was diagnosed with a PTSD and was being
processed by a Medical Evaluation Board (MEB).  He states that with the
help of mental health professionals at the clinic and some supportive
members of his chain of command, he became somewhat more able to function.

4.  The applicant also states that three months before he was medically
discharged, he received his leave and earnings statement and discovered his
pay had been stopped.  Upon investigating the cause, he discovered he had
been reported as being AWOL from 23 June through 15 July 2005, during a
period when the battalion was on block leave.  He claims he was where he
was supposed to be during this period, which was attending mental health
appointments and MEB briefings, as well as reporting to the unit as
required.

5.  The applicant further states that he can not speak to the intent of the
first sergeant (1SG), but he believes the 1SG did it to prevent him from
receiving a medical discharge, which he bases on comments and threats made
to him and others.  He claims the company commander told the 1SG that the
applicant would not be chaptered out of the Army.  He states this period of
AWOL when added to the previous 8 days of AWOL, totaled 31 days, which was
just enough to drop him from the rolls with all pay and benefits stopped.
He claims he was not paid again until he was placed on the Temporary
Disability Retired List (TDRL) on 29 October 2005.

6.  The applicant concludes by stating that being punished for a mental
illness after 9 years of exemplary service was undignified and humiliating.
 He claims Soldiers with physical combat injuries are not punished based on
their inability to do the job because they did not choose to be wounded and
a mental disability should be no different.

7.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Medical Treatment Records; Personnel
Actions
(DA Forms4187, dated 4 March, 22 June and 15 July 2005; Separation Document
(DD Form 214); and a Defense Finance and Accounting Service (DFAS) Military
Leave and Earnings Statement (LES) for 1-28 October 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 12 March 1996.  He was trained in and awarded
military occupational specialty (MOS) 19K (Armor Crewman) and the highest
rank he attained while serving on active duty was staff sergeant (SSG),
which he attained on 1 July 2004.

2.  The applicant's record confirms he earned the following awards during
his active duty tenure:  Army Commendation Medal (2nd Award); Army
Achievement Award (2nd Award); Army Good Conduct Medal (2nd Award);
National Defense Service Medal; Kosovo Campaign Medal; Armed Forces Service
Medal; Noncommissioned Officer (NCO) Professional Development Ribbon
(Numeral 2);
Army Service Ribbon; North Atlantic Treaty Organization (NATO) Medal;
Parachutist Badge; Global War on Terrorism Expeditionary Medal; and Global
War on Terrorism Service Medal.

3.  The record shows the applicant after having successfully served in
Kosovo in 2001, he was deployed to and served in Iraq from 30 March 2003
through
9 March 2004.
4.  The Noncommissioned Officer Evaluation Reports (NCOERs) the applicant
received for the periods December 2002 through November 2003 and
December 2003 through September 2004, both contain rater evaluations of
"Among The Best".  The senior rater evaluations on these reports were all 1
in Overall Performance and in Overall Potential.  In both NCOERs, the
comments of the rater and senior rater were highly complimentary and
favorable.  The senior rater recommended the applicant's promotion to
sergeant first class (SFC) upon first look, and indicated that the
applicant was in the top 5 percent of
Tank Commanders in the Squadron.

5.  On 1 April 2005, the applicant accepted non-judicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) from his battalion commander, for being AWOL from 25 February
through 4 March 2005.  The resultant punishment was a reduction to sergeant
(SGT), forfeiture of $1,164.00 pay per month for two months, and 45 days
restriction and extra duty. The imposing commander directed the DA Form
2627 be filed in the performance portion of the applicant's Official
Military Personnel File (OMPF).

6.  The applicant appealed the punishment and submitted additional matters,
which are not on file.  On 6 April 2005, a Judge Advocate General (JAG)
attorney considered the applicant's appeal and opined that the proceedings
were conducted in accordance with law and regulation and that the
punishments imposed were not unjust or disproportionate to the offense
committed and the appellate authority denied the applicant's appeal.

7.  On 13 April 2005, the applicant's unit commander provided a Performance
Statement on the applicant to the President of the PEB.  In it, he stated
that the applicant had difficulty accomplishing his duties due to multiple
appointments and the inability to stay at work for the full day even
without appointments.  He stated that the applicant was recently given a
field grade Article 15 for going AWOL in February and was showing for work
more regularly.  He further stated that the applicant had a P-3 profile
that prohibited him from getting on a tank and that the applicant seemed to
get upset when put under minimal stress.

8.  In the performance statement he provided to the PEB, the applicant's
commander also stated that the applicant said he had a PTSS (sic) from
shooting at people in Iraq, whom he may or may not have deemed to be a
threat.  He further indicated that when the unit deployed to Iraq, they
would have to shoot at people because and would be under extremely
stressful conditions, which is exactly where the applicant's PTSS (sic)
originated and as a result, he would be of no use to the Army.

9.  On 9 June 2005, a MEB convened at Fort Hood, Texas, to consider the
applicant's case.  The medical history provided by the responsible
physician that accompanied the MEB proceedings stated that the applicant
first presented for medical treatment for a PTSD and Panic Attacks in early
December 2004.  It further describes the applicant's difficulty with panic
attacks, characterized by rapid onset of racing heartbeat, sweating,
feeling flushed and turning red; shortness of breath; numbness; and
paresthesias of feet and hands, with fear and sense of impending doom, and
occasionally crying as well as fear of loss of control or going crazy.

10.  The examining physician further indicated in the MEB medical history
that the applicant's first panic attack occurred at Walter Reed Army
Medical Center (WRAMC) in January 2004, while he was being treated for
Leishmanaiasis.  The applicant had another panic attack in July 2004 and a
third on 1 December 2004, his most severe to that point, after which he
continued to have them more frequently, up to two or three in the next few
weeks, then daily by mid January 2005.  As the applicant's panic attacks
progressed, he developed increasing fear about having future attacks.  The
applicant's panic attacks usually occurred unexpectedly, without triggers,
although they were also triggered by crowded situations or places where
there was a lot of constant loud noise.  By early January 2005, the
applicant began developing significant anxiety around tanks, particularly
with a fear of having a panic attack when in a tank.

11.  The medical history summary also indicated that the applicant first
began medication treatment for his panic attacks after his severe panic
attack on
1 December 2004.  He states that although the applicant experienced
improvement with his panic attacks as a result of his medication, he
continued to experience significant decreases in his confidence,
motivation, and concentration, as a result of his constant fear of further
panic attacks and feeling that he was subsequently unable to appropriately
or safely lead his Soldiers on tanks.  Along with the applicant's increased
inter-episode anxiety about future panic attacks, his agoraphobia also
worsened, to the point where he occasionally avoided going to work, due to
feeling too afraid to go anywhere or leave his house.  He was subsequently
considered AWOL from 25 February through
4 March 2005.

12.  The examining physician also stated that beginning in March 2005, the
applicant began experiencing more prominent PTSD symptoms, which he
described as being very bothered by certain experiences during his
deployment to Iraq, with feelings of increased anxiety and distress over
the preceding several months.  The physician goes on to describe the
applicant's experiences in Iraq.

13.  In the medical history summary, it indicates the applicant denied any
history of flashbacks or nightmares that he could recall, but did endorse
increased psychological and physiological reactivity when exposed to
reminders of the incidents in Iraq, particularly becoming anxious in tanks.
 He states that the applicant had subsequently avoided being around tanks
due to the fear of experiencing that similar anxiety and feeling out of
control with subsequent fear of being unable to take care of his Solder's
safely.  The examining physician further stated that over the course of
early January 2005 to late March 2005, the applicant's medication was
gradually increased and while responding in some areas, the applicant
continued to be unable to stop dwelling on his Iraq experiences and
continued to feel very depressed and hopeless.  He stated that along with
the applicant's depressive symptoms, the applicant continued to experience
significant difficulties with PTSD symptoms with constant intrusive
thoughts of Iraq, particularly after watching the news or after other
reminders.  He indicated the applicant had no past psychiatric history.

14.  The applicant was diagnosed with PTSD, Panic Disorder with
Agoraphobia, and Major Depressive Disorder, and the MEB determined he did
not meet retention medical standards.  The MEB referred the applicant's
case to a PEB.

15.  On 23 June 2005, during his disability processing, the applicant's
duty status was changed from Present for Duty (PDY) to AWOL, and on 15 July
2005, his duty status changed from AWOL to PDY.

16.  On 13 September 2005, a PEB convened at Fort Sam Houston, Texas, to
consider the applicant's case.  The PEB determined the applicant was unfit
for further service based on his diagnosed conditions of PTSD, Panic
Disorder with Agoraphobia, and Major Depressive Disorder.  The PEB
recommended a disability percentage of 30 percent and that the applicant be
placed on the TDRL.

17.  On 16 September 2005, the applicant concurred with the findings and
recommendations of the PEB and waived a formal hearing of his case and on
23 September 2005, the PEB findings and recommendations were approved on
behalf of the Secretary of the Army.

18.  Headquarters III Corps and Fort Hood, Fort Hood, Texas, Orders Number
271-0148, dated 28 September 2005, directed the applicant's release from
active duty (REFRAD) because of physical disability on 28 October 2005, and
his placement on the TDRL, in the rank of SGT, on 29 October 2005.

19.  On 28 October 2005, the applicant was honorably REFRAD for the purpose
of retirement.  The DD Form 214 he was issued confirms he completed a total
of
9 years, 6 months and 14 days of active military service and that he
accrued
33 days of time lost over two periods of AWOL (25 February-4 March 2005 &
23 June-15 July 2005).

20.  On 8 August 2007, a PEB reevaluated the applicant's case and after a
thorough review of the applicant's most recent medical evaluation and all
other available medical records, it recommended the applicant be retained
on the TDRL with reexamination on or about February 2009.

21.  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, and Part V, MCM.  Paragraph 3-28
contains guidance on setting aside punishment and restoring 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.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 Appendix B contains guidance on the application of the Department of
Veterans Affairs Schedule for Rating Disabilities and provides general
policies for rating disabilities.

23.  Paragraph B-107 of the PDES regulation contains guidance on rating
mental disorders and it states, in pertinent part, that in order to support
a definite 30 percent rating the following factors must exist:  (a)  Does
not require hospitalization; (b)  Displays some signs or symptoms of mental
illness on examination;  (c) Usually requires medication and or
psychotherapy; (d) Usually there is job instability; and (e) Borderline
social adjustment.

DISCUSSION AND CONCLUSIONS:

1.  Although it appears the applicant's Article 15 processing was
accomplished in accordance with the applicable law and regulation, it is
clear there are significant mitigating factors and equity considerations
that should be addressed in this case.  The evidence of record clearly
shows the applicant's performance of duty during his more than 9 years of
service, which includes his service as NCO up to and during his deployment
to Iraq, was outstanding.  His NCOERs reveal extremely good evaluations and
contain comments that place him among the best NCOs in his unit, and that
recommend his early promotion to SFC.  These evaluations appear to be a
true reflection of his overall record of outstanding service prior to his
incurring the disabling conditions that supported his separation processing
through medical channels, and which ultimately led to his retirement
because of disability.

2.  The evidence of record further confirms the onset of the applicant's
disabling conditions began in December 2004.  It also shows that since
December 2004, the applicant has continually been receiving medical care
for these disabling conditions that ultimately led to his separation
processing through the PDES and his retirement and placement on the TDRL
because of disability.

3.  By regulation, the basis for any set aside action on an Article 15 is a
determination that, under all the circumstances of the case, the punishment
resulted in a clear injustice.  In this case, given the applicant was
clearly under medical care for conditions that significantly impaired his
ability to perform his duties, as was ultimately supported by the PEB
decision in the case, the imposition of the Article 15, even if unintended,
was a clear injustice.

4.  The record also shows that during the two periods of AWOL the applicant
was charged with, he was being treated and processed for separation through
medical channels based on his disabling conditions.  As a result, it
appears his chain of command acted too harshly dealing with the applicant
for these incidents that were clearly the result of his suffering from the
disabling conditions that ultimately led to his disability retirement.
Therefore, it seems it would be appropriate and serve the interest of
justice and equity to set aside the punishment imposed by the Article 15 in
question, and to restore to the applicant all rights, privileges, or
property affected by the punishment, which includes his restoration to SSG
with his original date of rank and any back active duty pay and retired pay
due as a result.  It would also be appropriate to remove the
DA Form 2627 in question and all related documents from the applicant's
record.
5.  In addition, it would also be appropriate and serve the interest of
justice to correct his record to show he was in a valid PDY status during
both periods he was reported AWOL and to remove all references to time lost
from his record and separation document.

BOARD VOTE:

___JS __  __JTM___  __DWT _  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 1 April 2005 Article 15 imposed on him and
restoring all rights, privileges, or property affected by the punishment to
him and removing the DA Form 2627 and all related documents from his OMPF;

      b.  showing he was Present for Duty and not AWOL during the periods
25 February through 4 March 2005 and 23 June through 15 July 2005 and
removing the lost time entries in Item 29 (dates of time lost during the
period) of his 28 October 2005 DD Form 214;

      c.  providing him all back active duty and retired pay due as a
result of these corrections, which includes entitlement to any monies
forfeited as a result of the punishment imposed as a result of the 1 April
2005 Article 15 in question; and

      d.  providing him a correction to his separation document that
includes these changes.




                                  _____John Slone_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070011575                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/18                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/10/28                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]