IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100007730 


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:

The applicant defers his request, statement, and submission of documentary evidence to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for:

* removal of the Article 15, dated 9 October 2007, from his records
* reinstatement of his rank/grade of sergeant (SGT)/E-5
* medical retirement due to severe post-traumatic stress disorder (PTSD)

2.  As new issues, counsel requests correction of the applicant's records to show:

* a second award of the Purple Heart
* medical separation with entitlement to severance pay if medical retirement is not warranted

3.  Counsel states the following in her legal brief:

* the Army did not follow Department of Defense guidelines when discharging the applicant
* his discharge was inappropriate because other preferred separation methods were available
* if the Army followed proper separation procedures, the applicant would have been found medically unfit and retired
* current laws allow for his retirement with at least a 50-percent disability rating
* the Army incorrectly discharged him due to personality disorder when he should have been discharged for PTSD
* his medical records support a diagnosis of PTSD, not a personality disorder
* his medical history before and after his military service does not support a diagnosis of a personality disorder
* the applicant was denied the right to examine all available evidence against him
* he presented ample evidence of mitigating factors
* he was given insufficient time to prepare his defense
* the applicant should be awarded the Purple Heart with oak leaf cluster for his ear injury in February 2007

4.  Counsel provides a binder containing 44 enclosures consisting of the applicant's declaration, medical examination, medical disposition, counseling statement, Report of Suspension of Favorable Personnel Actions (Flag), psychological report, post-deployment health assessment, Article 15, various chronological records of medical care, progress notes, psychiatric evaluation, emergency treatment record, PTSD checklist, various orders, mental status evaluation, DD Form 214 (Certificate of Release or Discharge from Active Duty), separation packet, electronic mail exchange, post-service psychiatric evaluations, post-service Department of Veterans Affairs (VA) rating decision, and other medically-related documents.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090003450 on 1 July 2009.

2.  Counsel provides a binder that contains 44 enclosures, most of which were previously considered by the Board.  However, counsel makes a new argument and submits a copy of the applicant's post-service psychiatric evaluations and post-service VA rating decision, which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  Counsel requests that the applicant be awarded a second award of the Purple Heart for injuries sustained as a result of a U.S. Army tank accidently firing its main gun at his position in Iraq that resulted in a ruptured ear drum.  Paragraph 2-5 of Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him/her.  There is no evidence the applicant or his counsel submitted his application to the Commander, U.S. Army Human Resources Command, 
ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122, and were denied this award.  The applicant and his counsel were notified by separate correspondence of their failure to exhaust his administrative remedies.  Accordingly, the issue pertaining to a second award of the Purple Heart will not be discussed further in this Record of Proceedings.

4.  The applicant's records show he enlisted in the Regular Army on 8 January 2004 and held military occupational specialty 11B (Infantryman).  He was promoted through the ranks to SGT/E-5 on 1 April 2007 and he executed a 
4-year reenlistment on 3 July 2007.

5.  His records further show he served in Iraq in support of Operation Iraqi Freedom from 10 January 2005 to 30 December 2005 and from 15 January 2007 to 20 July 2007.  He was assigned to the 3rd Battalion, 69th Armor.

6.  His awards and decorations include the Purple Heart, Army Commendation Medal, Army Achievement Medal (2nd Award), Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, and Combat Infantryman Badge.

7.  On 7 July 2007, while deployed in Iraq, he was found drunk.  A few days later, he attempted suicide by consuming a large quantity of Tylenol.  He was subsequently seen at a clinic at Al Asad, Iraq, for recurrent major depression and a self-inflicted drug overdose.  He was diagnosed as having PTSD from his last deployment and depression.

8.  On 10 July 2007, he was referred for a psychiatry consultation and he was again diagnosed with severe major depression and PTSD from his last deployment.

9.  On 17 July 2007, he was seen by a social worker in Iraq.  The social worker remarked that the applicant was at combat stress for a month after his first suicide attempt in March 2007 and he was discharged on medications; however, his medication ran out in May and he was unable to get it renewed.  He had a history of PTSD from his first deployment which was never treated and intensified with his second deployment.  His mood and sleep habits had improved since his admission and he was no longer suicidal.

10.  On or about 19 July 2007, he left Iraq en route to Fort Bragg, NC, and he was assigned to the Warrior Transition Battalion.  He was subsequently evaluated at Womack Army Medical Center to determine his deployability, treatment plan, or board action.  He was determined not to have a service-disqualifying condition in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and he was cleared to return to his unit at Fort Stewart, GA.  The attending physician recommended that he continue receiving psychiatric and psychological services at home station.

11.  On 2 August 2007, he underwent a mental status evaluation.  The psychiatrist remarked that the applicant displayed no significant withdrawal symptoms or suicidal behavior on the ward.  He participated cooperatively in individual and group therapy.  He was not regarded as a danger to himself or to others.  His diagnosis was as follows:

* Axis I:  PTSD, mild, alcohol abuse
* Axis II:  personality disorder
* Axis III:  none

He was mentally sound and able to appreciate any wrongfulness in his conduct and conform his conduct to the requirements of the law.  He had the mental capacity to understand and participate in board or other administrative proceedings.  The psychiatrist recommended that he be administratively separated under the provisions of paragraph 5-17 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

12.  On 5 October 2007, subsequent to his return to Fort Stewart, GA, he underwent a thorough medical examination.  He completed a DA Form 2807 (Report of Medical History) and indicated that he was diagnosed with amblyopic and seborrhea dermatitis in August 2007, had loss of hearing, had some pain in his right knee, had migraine headaches for the past 6 months (controlled with medications), had a concussion, had been diagnosed with PTSD and was undergoing treatment, and had a gunshot wound in July 2006.  He also indicated he was an inpatient for mental health reasons.  The attending physician determined that the applicant had no defects and he was qualified for service or separation.

13.  On 5 October 2007, his detachment commander documented that the applicant and Sergeant First Class C____ met with Doctor C____ on 2 October 2007 and discussed the applicant's medical diagnoses and Uniform Code of Military Justice (UCMJ) violation.  It was determined that he suffered from a mild case of PTSD and a personality disorder and that his violation of a general order (drinking on duty while deployed to Iraq) was serious enough to be considered for a trial by court-martial.  The detachment commander stated that at a minimum most Soldiers are separated under the provisions of paragraph 14-12 for misconduct with a discharge under other than honorable conditions or a general discharge when punished with a field-grade Article 15 or a court-martial while assigned to the detachment.  The detachment commander also stated that given the applicant's previous service record, medical condition, and conduct while assigned to the 3rd Battalion, 69th Armored Regiment, he recommended the applicant receive a field-grade Article 15 and a discharge under the provisions of paragraph 5-17 for being physically and mentally unfit for duty.

14.  On 8 October 2007 prior to receiving nonjudicial punishment (NJP), he submitted a statement wherein he stated, "First off, I would just like to say that I am guilty of drinking alcohol in Iraq…I can appreciate the seriousness of what I did…After returning from the year-long deployment, I started having issues with alcohol.  It did not affect my work, as I have never been in trouble until this point in my life.  I never asked for help because I saw how other Soldiers who went to ASAP [Army Substance Abuse Program] or mental health were treated…I would like to say that I have been undergoing treatment for my condition for the past several weeks and I have been doing much better.  I know what I did was wrong and I feel horrible about it."

15.  On 9 October 2007, while holding the rank/grade of SGT/E-5 and after consulting with counsel, he declined trial by a court-martial and he accepted NJP under the provisions of Article 15, UCMJ, at a closed hearing for violating a lawful general order by wrongfully consuming alcohol within the Multi-National Corps-Iraq (MNC-I) area of responsibility on or about 7 July 2007.  His punishment consisted of a reduction to specialist four/E-4, a suspended forfeiture of $941.00 pay, and 45 days of restriction and extra duty.  The imposing commander directed that the original DA Form 2627 (Record of Proceedings under Article 15, UCMJ) be filed in the restricted section of the applicant's official military personnel file (OMPF).

16.  Subsequent to receiving this punishment, he appealed to the next higher authority.  However, on 26 October 2007 after a determination by a military attorney that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed, the next higher commander denied his appeal.

17.  Item 11 (Allied Documents and/or Comments) of the DA Form 2627 listed six enclosures that were considered in the Article 15 proceedings:  his Enlisted Record Brief, dated 8 July 2007; DA Form 4856 (Developmental Counseling Form), dated 9 July 2007; seven DA Forms 2823 (Sworn Statements), all dated 9 July 2007; urinalysis results (i.e., Laboratory Services, Company C, 501st Forward Support Battalion, Camp Ramadi, Iraq, Laboratory Results Form), dated 8 July 2007,Standard Form 513 (Medical Record - Consultation Sheet), dated 7 July 2007; DA Form 2823, dated 8 July 2007; DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 4 October 2007; and Headquarters, MNC-I, General Order Number 1, dated 16 December 2006.

18.  His OMPF contains a coversheet titled, "Matters in Mitigation and Extenuation, Field Grade Article 15, [Applicant's Rank, Name, Unit]," along with copies of his personal statement, a personal financial evaluation, medical diagnoses of PTSD, a list of witnesses on his behalf, and matters correlating abuse of alcohol with PTSD.

19.  On 3 December 2007, his detachment commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-17 of Army Regulation 635-200 by reason of other designated physical or mental condition.  Specifically, the detachment commander cited the applicant's 2 October 2007 diagnosis with Axis I mild PTSD and alcohol abuse and Axis II personality disorder.  He recommended an honorable discharge.

20.  On 3 December 2007, the applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He indicated he understood that he was not being considered for separation under other than honorable conditions and elected not to submit statements in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

21.  On 5 December 2007, his detachment commander initiated separation action against him under the provisions of paragraph 5-17 of Army Regulation 
635-200 by reason of other mental condition.  The specific reason for the action recommended was that he was diagnosed with Axis I mild PTSD and alcohol abuse and Axis II personality disorder on 2 October 2007.  The detachment commander added that the applicant was evaluated by the Womack Army Medical Center Behavioral Health Clinic and received counseling and treatment at the Division Mental Health and the Army Substance Abuse Program.  The detachment commander requested that further rehabilitation requirements be waived and that the applicant not be transferred to the Individual Ready Reserve. 
He also recommended that the applicant's term of service be characterized as honorable.

22.  On 6 December 2007, the intermediate commander reviewed the proposed separation action and recommended approval of his discharge under the provisions of paragraph 5-17 of Army Regulation 635-200 due to other mental condition and that his service be characterized as honorable.  He also recommended a waiver of the requirement for rehabilitative transfer.

23.  On 7 December 2007, a military attorney reviewed the applicant's discharge packet and found it legally sufficient.

24.  On 10 December 2007, the separation authority approved the applicant's discharge under the provisions of paragraph 5-17 of Army Regulation 635-200 due to other mental condition and directed that his service be characterized as honorable.  Accordingly, the applicant was discharged on 18 December 2007.

25.  His DD Form 214 confirms he was honorably discharged under the provisions of paragraph 5-17 of Army Regulation 635-200, based on a condition, not a disability, with the separation code "JFV."  This form also shows he completed 3 years, 11 months, and 11 days of creditable active service.  Item 4a (Grade, Rate or Rank) shows the entry "SPC," item 4b (Pay Grade) shows the entry "E-4," and item 12h (Record of Service - Effective Date of Pay Grade) shows the entry "2007 10 09."

26.  On 6 August 2009, he was referred by his counsel for a psychological evaluation, wherein a psychologist concluded that the applicant exhibited a number of signs and symptoms that warranted a diagnosis of chronic PTSD and that he did not exhibit signs or symptoms that would have warranted a diagnosis of personality disorder.

27.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  Paragraph 3-18f states that if the Soldier requests a decision period, the Soldier will be given a reasonable time to consult with counsel, including time off from duty, if necessary, to decide whether or not to demand trial.  The decision period will not begin until the Soldier has received actual notice and explanation of rights under Article 15 and has been provided a copy of the DA Form 2627 with items 1 and 2 completed.  The Soldier will be advised that if the Soldier demands a trial, block 3a of the DA Form 2627 must be initialed and item 3 must be signed and dated within the decision period.  Otherwise, the commander will proceed under Article 15.  The decision period should be determined after considering factors such as the complexity of the case and the availability of counsel.  Normally, 48 hours is a reasonable decision period.

28.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Tables 2-1 and 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.  Table 2-1 shows the DA Form 2627 may be filed in either the performance or restricted portion of the OMPF.

29.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 7 (Appeals and Petitions), paragraph 7-2, provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

30.  Army Regulation 635-200 set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 5, paragraph 5-17, provides that specified commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

31.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies the SPD of "JKV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of paragraph 5-17 of Army Regulation 635-200, based on a condition, not a disability.

32.  Army Regulation 635-200, paragraph 1-33, provides that when the medical treatment facility commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7, 14, or 15 does not meet the medical fitness standards for retention, he/she will refer the Soldier to a medical evaluation board (MEB).  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.

33.  Army Regulation 635-40 sets policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in chapter 3 of Army Regulation 40-501.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB.

34.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend the Article 15 should be expunged from his records, his rank/grade of SGT/E-5 should be reinstated, and his records corrected to show he was medically retired due to PTSD, or in the alternate, be medically separated with entitlement to severance pay.

2.  The evidence of record confirms the applicant, a noncommissioned officer and a leader of Soldiers, violated the UCMJ in a combat environment.  He was notified that he was being considered for punishment and he was afforded three times (6 days) the normal 2 days to decide what he wanted to do in his case.  He acknowledged he was afforded the right to consult with counsel and of all the rights available to him.  Subsequently, at a closed hearing, all matters presented in defense, mitigation, and/or extenuation having been considered, the commander imposed punishment and directed that the Article 15 be filed in the restricted portion of his OMPF.  He appealed his punishment, but his appeal was denied.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of his OMPF as directed by the imposing commander.  There is no evidence of record and he and his counsel provide no evidence to show the DA Form 2627 is untrue or unjust.

4.  His argument that he was denied the right to examine all available evidence lacks merit and is speculative as it is unclear what specific evidence was withheld from him.  Additionally, his argument that he presented ample evidence of mitigating factors was considered by the imposing authority.  The fact remains that he violated the UCMJ and set a poor example for himself, as a leader, his Soldiers, the Noncommissioned Officer Corps, and the Army.

5.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  He failed to provide such evidence.  Additionally, because there is no evidence or error or injustice in the imposition of the Article 15 or its punishment, he is not entitled to correction of his records to show reinstatement to the grade of SGT/E-5.

6.  With respect to the applicant's discharge, after his suicide attempt and evacuation from theater, the Army evaluated and treated him for PTSD.  His record contains various mental health entries from July 2007 through August 2007 showing a diagnosis of chronic PTSD.  Upon his return to Fort Stewart, but prior to receiving his Article 15, he underwent a mental status evaluation and he was diagnosed with mild PTSD, alcohol abuse, and a personality disorder.  The evaluation did not specify the exact type of disorder or cite the symptoms or basis for this diagnosis.  Nevertheless, his discharge was recommended.  He was ultimately discharged based on this recommendation.

7.  Whether the applicant had a personality disorder is irrelevant as far as the applicant's request for disability retirement is concerned.  His unit's attempts to spare him a punitive discharge resulted in an unclear or unexplainable discharge. 
If the applicant was unsuitable due to PTSD, he could have received an MEB.  If he was unsuitable for alcohol abuse, he could have been discharged under chapter 9 of Army Regulation 635-200.  If he had a personality disorder, the appropriate discharge would have been paragraph 5-13 of Army Regulation 
635-200, not paragraph 5-17.  His Axis diagnosis are all listed in the Mental Status Evaluation, but are not offered as reasons for the paragraph 5-17 discharge.  Nevertheless, the fact that the reason for the paragraph 5-17 discharge may not be accurately described cannot be fixed by an MEB.

8.  While it is clear he may have been discharged under the wrong provision of chapter 5 of Army Regulation 635-200, it is also clear that his medical condition was not unfitting.  His company commander mistakenly believed that the applicant's violation of General Order Number 1 required separation from the Army.  Instead of simply recommending an Article 15 and allowing the applicant to continue serving or a chapter 14 discharge based on misconduct with a recommendation for an honorable discharge, the applicant's company commander pursued the paragraph 5-17 provision in the mistaken belief that he was doing the applicant a favor by not exposing him to anything but an honorable discharge.  In fact, he considered the applicant fit and expected he would reenlist after 6 months had passed.

9.  The applicant's file is full of references to PTSD and his progress in treatment. 
His mild PTSD and alcohol abuse are not offered as reasons for the discharge under paragraph 5-17 and the diagnosis of a personality disorder was unsupported and untimely removed from his medical records at the applicant's own request.  An MEB was considered by his health care providers and was determined to be unwarranted.

10.  The VA's subsequent award for PTSD does not speak of his condition at the time of his discharge from the Army.  An award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

11.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The decision to use paragraph 5-17 as a basis for the discharge in order to help the applicant has blurred the lines and resulted in a misunderstanding regarding the applicant's physical and mental health.  Overall, the applicant benefited from his unit's actions.  However, his record does not support the contention that he did not meet physical retention standards due to PTSD.  Therefore, he is not entitled to relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090003450, dated 1 July 2009.



      ___________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)                                         AR20100007730



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PR