IN THE CASE OF:	  

		BOARD DATE:	  	   7 April 2009

		DOCKET NUMBER:  AR20080019799 


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, reinstatement of his U.S. Army Special Forces (SF) status.

2.  The applicant states in effect, that his chain command disregarded the diagnoses of his doctors that he suffered from post-traumatic stress disorder (PTSD) and that on or about 8 May 2008 his command revoked his SF Tab.  His command failed to follow its own regulation when it cited an improper basis for the revocation; that is, its basis is not found in Army Regulation 600-8-22 (Military Awards), paragraph 1-31c(9), and therefore not properly approved by the Secretary of the Army or his properly appointed delegate which is in violation of Army Regulation  600-8-22; the Administrative Procedures Act; Title 5, U.S. Code, section 552; and Title 5, U.S Code, section 702.

	a.  On 29 May 2008, the applicant was seen by a medical doctor who determined that he was suffering from PTSD.  He was referred to a psychiatric unit and it was determined that his psychological injury arose during his four combat tours (one in Iraq and three in Afghanistan) during the period 2001-2006. On 9 June 2008, the medical doctor also determined that the psychological injuries caused the behavior which resulted in his commander's move to revoke his SF Tab.

	b.  On 16 June 2008, he states that he was admitted to the Womack Army Medical Center (WAMC), Fort Bragg, North Carolina, psychiatric unit for PTSD "decompensation."  On 8 July 2008, the applicant was seen by a psychiatrist at WAMC who also determined that he suffered from PTSD and believed that the applicant's symptoms of PTSD started after the third combat rotation in March 2006.  On 26 August 2008, a neuropsychologist, WAMC, likewise opined that he was suffering from PTSD which started after his third combat tour in March 2006.

	c.  The applicant adds that on 2 October 2007, and before his SF Tab was taken away from him, he had previously received the same diagnosis of PTSD by a civilian psychiatrist; however, the company commander at the time deliberately withheld this information from his chain of command.  The initial revocation of his SF Tab excluded the civilian psychiatrist diagnosis because the psychiatrist was not an Army psychiatrist.

	d.  The applicant continues to state that when the chain of command revoked his SF Tab, he immediately demanded to be seen by an Army psychiatrist.  After months of delay, he finally was seen by an Army medical doctor, Dr. N____, at the psychiatric unit at WAMC.  The applicant states in effect, that Dr. N____ told him that he had classic symptoms of PTSD; however, he believes that Dr. N____ was intimidated so he refused to make a written diagnosis of his condition.  Again the applicant requested to see an Army psychiatrist or obtain a referral for a civilian psychiatrist.  Finally, after his wife complained for several weeks, he was given a referral.

	e.  The applicant continues that his chain of command ignored the medical opinion that he was suffering from PTSD; they also presumed his guilt before these matters were fully investigated and adjudicated and before he could exercise his due process.  His command submitted, as the basis for the SF Tab revocation, the general officer memorandum of reprimand (GOMOR) and the allegation that he was arrested for driving while under the influence of alcohol after a car accident.  The command also used the opinion of the Fort Bragg Case Management Committee to substantiate an allegation of domestic violence against him, which is an improper basis upon which to initiate any adverse action.  He was also denied access to medical and psychological treatment and was kept in restriction tantamount to confinement from 15 August 2007 through 1 November 2007, nearly 90 days.  He was locked down in a room in the barracks for nearly 90 days.

	f.  The applicant finally states that on or about 2 June 2008 the Inspector General initiated an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation into the matter.  To date, the command refused to provide him with a copy of that investigation.  He states that he is a veteran of four combat tours.  In fact, prior to these alleged incidents he received the Bronze Star Medal with V Device for his service while deployed.  He has been a Soldier for nearly 15 years and a Special Forces Soldier for the last 8 years.  He served honorably in every position to which he was assigned.  Prior to this series of alleged incidents, he had an otherwise unblemished and sterling career.  This is the first time in his career that he has been considered for any form of punishment.  He respectfully requests that the Board reinstate his SF Tab, an award that he highly cherishes and greatly sacrificed to achieve.  He wants nothing more than to continue serving in the SF with honor.

3.  The applicant provided a copy of a four-page memorandum for appeal; two letters from the Fayetteville Psychiatric Associates; a letter from Health Net Federal Services, dated 30 May 2008; and 15 pages of related medical documents, dated 25 June through 26 August 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a sergeant first class on active duty at Fort Bragg, North Carolina.

2.  On 17 January 2008, the Commanding General (CG), Headquarters, U.S. Army Special Forces Command (Airborne), Fort Bragg, North Carolina, issued the applicant a GOMOR in which he reprimanded the applicant after being arrested on 19 July 2007 in an incident involving domestic abuse.  The incident was substantiated by the Fort Bragg Case Review Committee on 11 September 2007.  On 16 August 2007, the applicant was arrested for driving while impaired and driving left of center which ended in a single vehicle accident, all while his license was suspended.  He indicated that the applicant's misconduct constituted a flagrant disregard for law as well as the safety of his fellow Soldier.  Operating a motor vehicle while under the influence of alcohol demonstrates a complete lack of judgment and responsibility.  Further his use of physical violence against another person is unacceptable.  He also indicated that the applicant's actions constitute a serious departure from the high standards of integrity, professionalism, and conduct expected of a noncommissioned officer assigned to the command, and that the applicant had violated a position of trust and discredited himself, the Army, and the command.

3.  On 25 January 2008, the applicant acknowledged receipt of the GOMOR and elected to submit statements in his own behalf.

4.  On 1 February 2008, the applicant submitted a rebuttal to the GOMOR in which he stated, in effect, that he disagreed with the content of this reprimand and the basis for issuing it.  The GOMOR was issued to him merely for being arrested for alleged misconduct.  Moreover, the command ignored the diagnosis of his physician and psychiatrist, a well-respected expert, who had properly diagnosed him with a psychological injury (PTSD) upon his return from his fourth combat tour in the Middle East.  The command disregarded medical findings that any misconduct attributed was caused by his psychological injuries and disease. Moreover, the command presumes his guilt and runs roughshod over his constitutional right to the presumption of innocence before the matters are fully investigated and adjudicated.  He adds that the command alleges that he was arrested for domestic violence.  The reprimand illustrates yet another abuse of command authority against him.  He was unlawfully kept in restriction without proper review based upon the same allegations.  He was prohibited from performing any duty commensurate with his rank, grade, or experience; he was humiliated, belittled, and made the object of scorn and ridicule by his chain of command.  He was prohibited from seeing his fiancée and he was prohibited from exercising his parenting time.  Nonetheless, he adhered to all the unlawful conditions that were placed on his freedoms.  Prior to this series of alleged incidents, he had an otherwise unblemished and sterling career and respectfully requested that the GOMOR not be issued, but if it was issued, he requested that it be filed in his local file.

5.  On 20 March 2008, after a review of the applicant's rebuttal, the CG directed that the GOMOR be filed in his official military personnel file (OMPF).

6.  The applicant submitted as evidence medical documents which indicate he received psychiatric treatment between May and August 2008 for symptoms associated with PTSD.  The applicant also states that an Army Regulation 15-6 investigation was conducted; however, the investigation and the documents submitted by the applicant were not found in his electronic record.

7.  Army Regulation 600-8-22 prescribes the Army's awards policy.  Paragraph  1-30 contains guidance on the revocation of badges and the SF Tab.  It stipulates that commanders authorized to award combat and special skill badges were authorized to revoke such awards.  An award, once revoked, will not be reinstated, except by the CG when fully justified.  Paragraph 1-31c(9) contains the criteria for removal of the SF Tab.  It states, in pertinent part, that it can be revoked by the awarding authority if the recipient has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of an SF Soldier as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandates operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  Chapter 2 contains guidance on filing documents in the OMPF.  It states, in pertinent part, that orders pertaining to awards, including badges, tabs, bars and so forth, will be filed in the commendatory and disciplinary (CD) section of the performance portion of the OMPF.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the SF Tab revocation orders were unjust and should be removed from his OMPF because his chain of command disregarded the diagnoses of his doctors that he was suffering PTSD and that he was not allowed to exercise his due process rights were carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that the CG determined the applicant committed acts and/or engaged in conduct inconsistent with the integrity, professionalism, and conduct of an SF Soldier.  As a result, he appropriately directed the removal of the applicant's SF Tab and this revocation order was properly filed in the applicant's OMPF.  Therefore, there is an insufficient evidentiary basis to support removal of the revocation order at this time.

3.  Army Regulation 600-8-22 prescribes the Army's awards policy.  Paragraph 
1-31 contains guidance on the revocation of badges and the SF Tab.  It stipulates that commanders authorized to award combat and special skill badges are authorized to revoke such awards.  An award, once revoked, will not be reinstated, except by the CG when fully justified.  Paragraph 1-31c(9) contains the criteria for removal of the SF Tab.  It states, in pertinent part, that it can be revoked by the awarding authority if the recipient has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of an SF Soldier as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080019799



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ABCMR Record of Proceedings (cont)                                         AR20080019799



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