IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017688 


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, that derogatory entries and bullet comments on his DA Form 2166-8 (Noncommissioned Officer [NCO] Evaluation Report) (NCOER) for the period 4 December 2005 through 1 May 2006, which will simply be referred to as his NCOER throughout the remainder of these proceedings, be removed or, in the alternative, that his NCOER be removed from his military records. 

2.  The applicant essentially states that he was 60 percent disabled with Post-Traumatic Stress Disorder (PTSD) when he was recalled to active duty, and that he personally informed every medical person and member of his chain of command of this fact.  He also contends, in effect, that the derogatory entries and bullet comments should be removed from his NCOER or that his NCOER be removed from his military records.

3.  The applicant provides his NCOER; a self-authored statement, dated 
6 October 2008; his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to him on 22 January 2008; a DA Form 3349 (Physical Profile), dated 29 March 2007; a Physical Disability Agency (PDA) Scanning Record showing that his DA Form 199 (Physical Evaluation Board [PEB] Proceedings), dated 28 September 2007, was scanned on 16 November 2007; the aforementioned DA Form 199; and orders, dated 23 May 2006, which awarded him the Combat Action Badge, in support of this application. 



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he served on active duty in the Regular Army from 13 June 1978 to 3 August 1992, and was honorably discharged under the Fiscal Year 1992 Voluntary Early Transition Program and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  During this period of active duty, the applicant deployed to Southwest Asia and was awarded the Bronze Star Medal.  He continued his military career in the USAR, was ordered to active duty on 29 January 2006, and served in Operation Iraqi Freedom from 25 April 2006 to 30 June 2006.  

2.  The applicant's NCOER shows that he was serving in military occupational specialty 38B (Civil Affairs Specialist) with Company A, 402nd Civil Affairs Battalion at Contingency Operating Base (COB) Speicher in Iraq.  Part IV (Army Values/Attributes/Skills/Actions) essentially shows that his rater checked the "No" boxes for honor and personal courage, and entered bullet comments that the applicant did not demonstrate adequate personal courage in the conduct of his duties, did not maintain the Army values as a personal code in word and deed, and did not work up to his full potential.  Although he gave him a "Success" box check in Part IVd (Leadership), he essentially entered a bullet comment that the applicant typically thought of himself first and his team second.  He also gave the applicant a "Marginal" box check for his overall potential for promotion and/or service in positions of greater responsibility.  The applicant's senior rater checked the "Fair" boxes for his overall performance and overall potential for promotion and/or service in positions of greater responsibility, and entered bullet comments that the applicant did not display the attitude of a leader, and said "I quit!" and that he failed to take responsibility for his actions.  He also entered the bullet comment "do not promote."  There was also a bullet comment explaining that the applicant was unavailable to sign this report because he was medically evacuated before the evaluation was completed.

3.  The applicant provided a DA Form 3349, dated 29 March 2007, which essentially shows that he was issued a permanent physical profile for PTSD due to a 60 percent Department of Veterans Affairs (DVA) service-connected disability, chronic low back pain, and elevated glucose.  He was assigned a "3" for his physical capacity or stamina, a "3" for his lower extremities and a "4" for his psychiatric state.

4.  On 28 September 2007, a PEB found the applicant physically unfit due to PTSD and recommended that he be placed on the Temporary Disability Retired List (TDRL) with a reexamination during December 2008.  

5.  On 22 January 2008, the applicant was honorably retired due to temporary disability with a 30 percent disability rating.
  
6.  On 17 November 2008, a PEB convened to reevaluate the applicant, and it determined that the applicant was still physically unfit, and recommended that he be retired due to permanent disability with a 50 percent disability rating.  It also essentially determined that the applicant's PTSD had been present since Operation Desert Storm in 1991, and that he continued to have symptoms that interfered with his daily living even though he was able to work.  It also revealed that the applicant was hospitalized in May 2008 for being combative and homicidal.  Additionally, this PEB concluded that even though the applicant had only been on the TDRL since January 2008, it felt that permanent retirement should be recommended since the applicant's symptoms had been present to some degree since Operation Desert Storm.

7.  On 16 December 2008, the applicant was removed from the TDRL and retired due to permanent physical disability with a 50 percent disability rating.  His military records confirm that he earned the following awards and decorations during his military career:  the Bronze Star Medal, the Army Commendation Medal (2nd Award), the Army Achievement Medal (3rd Award), the Army Good Conduct Medal (4th Award), the National Defense Service Medal (2nd Award), the Armed Forces Expeditionary Medal, the Southwest Asia Service Medal with Three Service Stars, the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral "2" Device, the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the Kuwait Liberation Medal awarded by the Government of Kuwait, the Combat Action Badge, the Expert Marksmanship Qualification Badge with Grenade Bar, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Driver and Mechanic Badge with Driver-W (for wheeled vehicles) Bar.

8.  The NCOER the applicant received for the period April 2002 through January 2003 shows that his rater at the time did not give him any adverse ratings, and contained two rater evaluations that the applicant exceeded standards, and that he also rated him "Among The Best."  He also indicated that the applicant was a true professional who set a positive example for the entire unit, and put other Soldiers first over himself.  His senior rater for this NCOER also gave him the highest box checks for overall performance and overall potential for promotion and/or service in positions of greater responsibility, and indicated that the applicant was an excellent Soldier who should be promoted ahead of his peers and assigned to a position of authority.  The five NCOERs in his military records prior to this NCOER also reveal no derogatory comments or overtly adverse box checks.

9.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, provided, in pertinent part, that each report must stand alone, and will be an independent evaluation of the rated NCO for a specific rating period.  It also stated that to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  

10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations. The individual should receive assignments commensurate with his or her physical capability for military duty.  A profile serial containing one or more numerical designators of "4" indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.

11.  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.  Paragraph B-107 contains guidance on rating mental disorders and it states, in pertinent part, that in order to support a definite 50 percent rating the following factors must exist:  (a)  Mentally competent to handle financial affairs and to participate in PEB proceedings; (b)  Intermittent hospitalization; (c)  Overtly displays some signs of symptoms of mental illness, such as: autism, ambivalence, inappropriate affect, dissociative thinking, delusions, hallucinations, hyperactivity, depression, lack of insight, poor judgment, bizarre behavior, disorientation, emotional lability, memory defects, unfounded somatic complaints, phobias, compulsion, decreasing IQ, personality changes, and so forth; (d)  Requires constant medications or psychotherapy; (e) Extreme job stability; and (f) Significant social maladjustment.

12.  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 ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that derogatory entries and bullet comments on his NCOER should be removed or, in the alternative, that his NCOER should be removed from his military records. 

2.  Although it appears the applicant's NCOER was accomplished in accordance with the application regulation in effect at the time, 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 had been suffering from PTSD since Operation Desert Storm.  His NCOER, which included his service in Operation Iraqi Freedom, is the only blemish in his military records.  The fact that he served satisfactorily after his service in Operation Desert Storm but prior to his service in Operation Iraqi Freedom was noted, and it appears that his service in Operation Iraqi Freedom exacerbated his PTSD to such an extent that he could not or would not properly perform his duties in a combat environment a second time.  

3.  By regulation, each NCOER is supposed to be an independent evaluation for a specific rating period.  Notwithstanding this fact, the rest of his evaluation reports were satisfactory or excellent, and appear to be a true reflection of his overall record of service prior to exacerbating his PTSD during Operation Iraqi Freedom which ultimately led to his retirement due to permanent physical disability for PTSD.

4.  The basis for removing an NCOER from an official record is a determination that, in part, an injustice occurred.  In this case, the applicant was clearly suffering from PTSD that significantly impaired his ability to perform his duties while serving in Operation Iraqi Freedom, as was ultimately supported by the PEB decision in the case.  As a result, his NCOER, even if unintended, was a clear injustice.  Additionally, as the applicant is now retired with no possibility of reentry in the military, his NCOER no longer serves a purpose.  In view of the foregoing, it would be appropriate and serve the interest of justice and equity to remove his NCOER from his military records.

BOARD VOTE:

___X_____  __X______  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 removing his DA Form 2166-8 for the period 4 December 2005 through 1 May 2006 from his military records.  

2.  The Board wants to thank the applicant for the sacrifices he made in service to the United States throughout his military career.  The applicant and all Americans should be proud of his honorable service in arms.




      _______ _XXX   _______   ___
       	   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)                                         AR20080017688



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ABCMR Record of Proceedings (cont)                                         AR20080017688



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