IN THE CASE OF:	  

		BOARD DATE:	  	  11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012291


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, in effect, restoration to his former rank of staff sergeant/pay grade E-6.

2.  The applicant states, in effect, that he was wrongfully reduced from staff sergeant to sergeant for falling asleep while taking prescribed medication for post-traumatic stress disorder (PTSD).  He continues, in effect, that he was in treatment for PTSD which included sleeping medication before, during, and after the incident.  He states that his unit ignored his doctor’s recommendations which led to the incident.

3.  The applicant provides copies of a behavioral health evaluation dated 9 March 2007, Standard Forms 600 (Chronological Record of Medical Care) for the period 21 June 2007 through 5 July 2007, and DA Form 4856 (Developmental Counseling Form) dated 9 April 2007 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the Regular Army on 2 August 1999.  He completed basic training and advanced individual training and was awarded the military occupational specialty 31B (Military Policeman).  The highest rank he achieved was staff sergeant/pay grade E-6.

2.  The applicant’s military service records show that he served in Afghanistan from 22 October 2001 through 3 May 2002 while assigned to the Special Operations Command Korea.

3.  The applicant’s military service records show that he served in Afghanistan from 24 March 2004 through 5 April 2005 while assigned to the 58th Military Police Combat Support.

4.  The applicant’s military service records show that he served in Kuwait/Iraq from 16 February 2007 through 28 June 2008 while assigned to the Brigade Special Troops Battalion of Headquarters and Headquarters Company, 1st Infantry.

5.  The Mental Health unit of the Camp Falcon Troop Medical Clinic, Baghdad, Iraq, behavioral health evaluation dated 9 March 2007 shows the applicant was deemed to be psychiatrically stable and fit for duty to include combat operations. The evaluation indicates that the applicant’s depressive and anxiety symptoms would likely worsen and eventually impair his combat effectiveness if he was unable to return to home station for assignment to the rear detachment as soon as possible.

6.  DA Form 4856 dated 9 April 2007 shows that the applicant was counseled for dereliction of duty for sleeping while on duty as a tier guard on 6 April 2007.  The DA Form 4856 shows that he was advised that continued behavior of this kind may result in initiation of separation action to eliminate him from the Army.  Any further act of misconduct or unsatisfactory performance may cause him to be eliminated without further counseling.  The applicant indicated his agreement with the stated information on 9 April 2007.

7.  Standard Form 600 dated 21 June 2007 shows that the applicant was treated for non-battle related combat/operation stress presenting a single episode of major depression, insomnia related to axis I/II mental disorder (nonorganic), and anxiety disorder.  He reported that he was ordered to return from emergency leave and was informed upon return to theater that he would be given a field grade Article 15.  The Standard Form 600 shows that he was prescribed citalopram to treat depression and zolpidem tartrate to treat insomnia on or about 5 June 2007.

8.  Standard Form 600 dated 22 June 2007 shows that the applicant was treated for chronic post-traumatic stress disorder.  He reported sleep disturbance for more than 12 months due to recurring dreams of a traumatic experience he had in April 2003 while deployed in Afghanistan, panic attacks for 6 months, anger issues for 3 years, one episode of dissociation during his current deployment while in Kuwait related to a training scenario similar to the events during his traumatic experience, increased occurrence of headaches, and increased occurrence of common colds possibly due to depression and immune suppression issues.

9.  A second Standard Form 600 dated 22 June 2007 shows that the applicant was referred from Mental Health for pharmacotherapy for management of PTSD and depression.  The Standard Form 600 indicates that he just returned from emergency leave and that his wife had a very complicated pregnancy and really needed him to stay at home.  It also indicated that he was evaluated by a psychiatrist at Camp Falcon and Mental Health at Fort Riley, and that both recommended that he not return to Iraq but his command denied his release.  He presented psychological symptoms which included chronic emotional stress and depression.  He was additionally prescribed lorazepam for anxiety and sertraline for post-traumatic stress.

10.  Standard Form 600 dated 24 June 2007 shows that the applicant presented to the clinic seeking information with regard to collateral contact with his commanding officer.  He was informed of the outcome of contact with his commanding officer and encouraged to meet with his commander.  Use of medicines and their side effects were reviewed.

11.  Standard Form 600 dated 26 June 2007 shows that the applicant reported that he met with his battalion commander and command sergeant major to discuss recommendations.  He was advised that he was administratively cleared for duty within the forward operating base but would benefit from redeployment home and treatment for PTSD at home station.

12.  On 30 June 2007 the applicant received a relief for cause Noncommissioned Officer Evaluation Report for the period 1 September 2006 through 30 June 2007.

13.  Standard Form 600 dated 5 July 2007 shows that the applicant was referred for refill of lorazepam [Ativan] for treatment of PTSD and acute panic attacks.

14.  On 4 July 2007, the applicant received an Article 15 (Nonjudicial Punishment), Uniform Code of Military Justice, for leaving his post before he was regularly relieved on or about 7 April 2007 in violation of Article 113 and for being found sleeping upon his post on or about 7 April 2007 in violation of Article 113.  He received punishment in the form of reduction to sergeant/pay grade E-5; forfeiture of $1,211.00 pay, suspended; extra duty for 45 days; and restriction to the barracks, dining facility, place of worship, medical and dental facilities and gym for 45 days.  The applicant requested a closed hearing and indicated that he intended to appeal and submit additional matters.

15.  On 11 July 2007, the applicant’s appeal was considered by the judge advocate who opined that the applicant did not submit additional matters, that the proceedings complied with applicable laws and regulations, and the punishment was stern, but not overtly disproportionate to the charged offense.  On 12 July 2007, the appeal was denied by the Infantry Brigade Combat Team commander after consideration of all matters presented in appeal.

16.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 14 May 2008 shows that the applicant was evaluated for grade determination and received a combined rating of 20 percent for moderate muscle injury of his right leg and tenosynovitis of his left wrist.  His functional limitations in maintaining the appropriate level of ability caused by the physical impairments made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  His PTSD was considered by the PEB which found the condition to be not unfitting and therefore not ratable.  Soldiers with a disability rating of less than 30 percent and with less than 20 years of service are separated from service with disability severance pay.  On 16 May 2008, he indicated that he was advised of the findings and recommendations and did not concur with the findings.  He further indicated that he understood that failure to submit a written appeal may result in final processing of his case without review.

17.  Headquarters, 1st Infantry Division and Fort Riley, Orders 154-0018 dated 2 June 2008 show that the applicant was reassigned to the U.S. Army transition point for discharge on 6 June 2008.

18.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged from active duty by reason of non-combat related disability under honorable conditions on 6 June 2008 in the rank of sergeant/pay grade E-5.  His DD Form 214 shows that he served a total of 8 years, 10 months, and 5 days of creditable active military service during this period.

19.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that the applicant was awarded the Army Commendation Medal (3d Award), Army Achievement Medal, Army Good Conduct Medal (2d Award), National Defense Service Medal, Afghanistan Campaign Medal, Global War on Terrorism Service Medal, Korean Defense Service Medal, Noncommissioned Officer Professional Development Ribbon (2d Award), Army Service Ribbon, Overseas Service Ribbon (3d Award), Driver and Mechanic Badge (Mechanic) and Army Lapel Button.

20.  Item 18 of the applicant’s DD Form 214 shows that he was awarded disability severance pay in the amount of $46,272.60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was wrongfully reduced from staff sergeant to sergeant for falling asleep while taking prescribed medication for PTSD was carefully considered and determined to be without merit.

2.  The applicant was charged with violations of Article 113, Uniform Code of Military Justice, for leaving his post before he was regularly relieved on or about 7 April 2007 and for being found sleeping upon his post on or about 7 April 2007.

3.  The applicant’s records of medical care show that he was treated for PTSD during the period 21 June 2007 through 5 July 2007.  There is no evidence that he was receiving medical treatment at the time of the incident on 7 April 2007, nor does he present evidence that his medication was the direct cause of his misconduct.

4.  The evidence of record shows that the applicant was charged with violations of Article 113 punishable under the Uniform Code of Military Justice with a reduction in rank.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the judicial process.

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)                                         AR20080012291



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ABCMR Record of Proceedings (cont)                                         AR20080012291



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