IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100008431 


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 to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests two nonjudicial punishments (NJP) dated 30 October 2008 and 21 January 2009 imposed under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) be expunged from the applicant's military records, that he be restored $1,617 of forfeited pay, restored to the rank of specialist (SPC)/pay grade E-4, and all back pay and allowances lost due to the reduction in grade be restored. 

2.  Counsel states that the applicant received both of these NJPs while he was assigned to the Warrior Transition Battalion (WTB) at Fort Bragg where he was undergoing treatment for severe post traumatic stress disorder (PTSD).  Counsel states the applicant served honorably for more than 11 years in the U.S. Army including three combat tours in support of Operation Iraqi Freedom.  He developed severe PTSD requiring medical treatment with medication management assistance required by his WTB chain of command.  Counsel states the applicant's conduct that led to receiving the two NJPs is directly related to his illness.  He states, 

These actions would not have occurred if his command and the U.S Army had taken the care to ensure that (the applicant) was receiving proper treatment and assistance, including assistance taking his medications, in the


first place and not the knee-jerk reaction that occurred after he went absent without leave (AWOL) at which time the command took some measures to ensure (the applicant) was receiving his medication.

3.  Counsel continues by stating the command did not take measures to ensure the applicant took his medication and it did not ensure that he was properly counseled as required by Department of Defense Directive (DODD) 1332.18, section 3.13 when he appeared before the medical evaluation board.  Counsel concludes by stating the applicant's chain of command and the U.S. Army failed to recognize the full extent of his PTSD illness.  If his illness had fully been understood, the adverse actions would have been prevented.

4.  Counsel provides the following documentary evidence:

	a.  Order Number 120-002 issued on 29 April 2008 by WTB, Womack Army Medical Center, Fort Bragg, NC;

	b.  DA Form 4856 (Development Counseling Form), dated 14 August 2008 (which Counsel states is a post-dated document after the fact);

	c.  DA Form 2627 (Proceedings Under Article 15, UCMJ), dated 30 October 2008;

	d.  DA Form 2627, dated 21 January 2009;

	e.  DA Form 199 (Physical Evaluation Board [PEB] Proceedings) convened on 4 February 2009;

	f.  DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 12 June 2009; and

	g.  Orders 222-0262 issued on 10 August 2009 by U.S. Army Garrison Fort Bragg retiring the applicant effect 20 August 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 January 1998.  He completed his initial entry training and was awarded military occupational specialty 57E (Laundry and Bath Specialist).  He served honorably and was released from active duty on 18 February 2001 in the grade of private/pay grade E-2.  He had served for 2 years, 11 months, and 29 days.  He was 


transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his military service obligation.

2.  On 8 May 2001, he transferred from the USAR Control Group to the 302nd Transportation Company (USAR) stationed at Fort Eustis, VA.

3.  As a member of the USAR, he was ordered to active duty in support of Operations ENDURING and IRAQI FREEDOM on 24 January 2003.  

4.  He was honorably released from active duty on 7 May 2004 and issued a DD Form 214 that confirms his net active service for this period was 1 year, 3 months, and 14 days. His DD Form 214 contains the following entries:

	a.  Item 4a (Grade, Rate or Rank) SPC (specialist)

	b.  Item 4b (Pay Grade) E4 (E-4)

	c.  Item 18 (Remarks) SERVICE IN KUWAIT/IRAQ:  20030412–20040319 IMMINENT DANGER PAY AREA

5.  He was released from his USAR unit and immediately enlisted in the Regular Army on 13 May 2004 for a 3-year period of service in the rank of specialist (SPC)/pay grade E-4.  

6.  He received the Combat Action Badge for actively engaging or being engaged by the enemy on 18 May 2005 through issuance of Permanent Orders 093-06 by U.S. Army Human Resources Command-Alexandria on 3 April 2007.

7.  He reenlisted in the Regular Army for a 5-year period on 28 April 2006 in the rank of SPC in pay grade E-4.

8.  Counsel provided a DA Form 4856 showing the applicant had been counseled by his squad leader for failure to be at his appointed place of duty (end of day formation) on 6 August 2008.  She also counseled him concerning his period of AWOL from 6 August to 10 August 2008.  She admonished him and revoked his privileges.  He was directed to report at 0930 hours Monday through Friday and in the evenings at the end of day formation (time unspecified) to his squad leader for administration of his medication.  In addition, he was directed to call his squad leader every evening at 2130 hours and inform her that he was in his barracks with his battle buddy.  On the weekends, he was told to report to the WTB staff duty noncommissioned officer in charge (SDNCO) at 1000 hours and every 2 hours thereafter until 1800 hours.  He was to report with his medications and take 


them in the presence of the SDNCO.  The counselor concluded by stating he had received and signed a memorandum of notification of possible separation for continued substandard performance in accordance with Army Regulation 635-200.  This counseling session was documented and recorded and includes the statement, "will conduct follow up counseling two weeks from today's date: 28 August 2008."  Reviewing the signature blocks, the date "14 Aug 2008" was typed next to each signature.  The applicant agreed with the information presented in the counseling statement stating he was stressed out and just needed to get away.

9.  Counsel provided a DA Form 2627 showing the applicant accepted NJP on 30 October 2008 for being AWOL from his unit, the WTB, at Fort Bragg from       6 August to 9 August 2008.  His punishment consisted of reduction to private first class (PFC)/pay grade E-3, forfeiture of $417 pay for one month, and extra duty for 14 days.  The reduction in rank and forfeiture of pay was suspended until 15 April 2009.  The extra duty was suspended except for four days.  The company commander imposing the punishment did not direct filing this DA Form 2627 in the applicant's performance or restricted portion of his official military personnel file (OMPF) rather he indicated NA (not applicable). 

10.  Counsel provided a second DA Form 2627 showing the applicant accepted NJP on 21 January 2009 for being AWOL from 6 to 8 January 2009.  His punishment consisted of reduction to private/pay grade E-1, forfeiture of $600 pay a month for two months, and extra duty for 45 days.  Again, the company commander imposing punishment did not direct filing this DA Form 2627 in the applicant's performance or restricted portion of his OMPF rather he indicated NA.

11.  The applicant's medical service records and medical evaluation board (MEB) proceedings are not available for the Board's review.

12.  On 4 February 2009, an informal PEB convened and found the applicant was physically unfit for continued service and recommended a combined disability rating of 30 percent.  The PEB also recommend permanent disability retirement.  His diagnostic finding under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) was VASRD code 9434 defined as major depression (single episode) with anxiety disorder (not otherwise specified [NOS]).  His psychometric and neuropsych testing was inconsistent.  He suffered from insomnia, irritability, depressed mood and low self worth with guilt.  He was hospitalized twice after two suicide attempts, but at the time of the PEB he was found to be in compliance with his medications, therapy and had no suicidal ideation or delusions.  Based on his decreased efficiency of his occupational and social functions his ability to function as a Soldier was impaired.

13.  The informal PEB did not find the applicant had a flattened affect, communication impairment, weekly panic attacks, cognitive impairment, difficulties with judgment or abstract thinking, clinical disturbance of motivation, or significant impairment in establishing or maintaining social relationships that could have warranted a higher rating.

14.  On 10 February 2009, a counselor for the informal PEB informed him of the findings and recommendations of the PEB.  He was also advised of his legal rights.  He concurred with the informal PEB findings and recommendation and waived the right to a formal hearing of his case.  Both he and the counselor signed and dated DA Form 199.

15.  On 18 February 2009, the appropriate authority approved the informal PEB findings and recommendations. 

16.  The Department of Army Grade Determination Review Board (AGDRB) met on 5 March 2009 and determined the applicant's highest grade satisfactorily held was private/pay grade E-1 based on the NJPs filed in his service records.  

17.  On 20 August 2009, the applicant was honorably separated from the Regular Army and retired with a permanent disability in accordance with Army Regulation 635-40, paragraph 4-24b(1).  He was issued a DD Form 214 that confirms his net active service for his current enlistment period was 5 years and 25 days with 4 years, 3 months, and 14 days of prior active service.  His DD Form 214 shows the following entries:

	a.  Item 4a (Grade, Rate or Rank) PV1 (private)

	b.  Item 4b (Pay Grade) E01 (E-1)

	c.  Item 18 (Remarks) SERVED IN DESIGNATED IMMINENT DANGER PAY AREA//SERVICE IN IRAQ 20030401 – 20041201//SERVICE IN IRAQ 20051001 – 20060101//SERVICE IN IRAQ 20060910 – 20070911//SOLDIERS DISABILITY IS SERVICE CONNECTED AND IS ENTITLED TO 30% DISABILITY; and

	d.  Item 29 (Dates of Time Lost During This Period) under the provisions of Title 10, U.S. Code, section 972:  20080806 – 20080808; 20090106 – 20090107

18.  On 21 August 2009, he was placed on the retired list in the rank of private/pay grade E-1 by Orders 222-0262 issued by U.S. Army Garrison at Fort Bragg.  His disability retirement was based on 9 years, 4 months, and 9 days of active service with 11 years, 3 months, and 19 days of service for basic pay. 

19.  References:

	a.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System providing for the retention, retirement, or separation of a Soldier who is determined to be unfit to perform the duties of her office, grade, rank or rating because of physical disability.  This regulation states that:

		(1)  The VA code numbers appearing opposite the listed ratable disabilities are numbers for showing the basis of the evaluation assigned and for statistical analysis.  They are a guide for evaluating disabilities resulting from all types of diseases and injuries encountered because of or incident to military service.

		(2)  The percentage ratings of the VASRD represent the average loss in earnings capacity resulting from disease or injury.

		(3)  VASRD Code 9434 (Mood Disorder) is defined as major depressive disorder

		(4) VASRD Code 9411 (Anxiety Disorders) is defined as PTSD

	b.  Title 38, Code of Federal Record Book C (Schedule for Rating Disabilities) provides in pertinent part the general rating formula for mental disorders with a combined rating of 30 percent.  The occupational and social impairment behaviors exhibited by a person includes occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Generally a person functions satisfactorily with generally accepted routine behaviors, demonstrates self-care, and can communicate normally.  Often the symptoms exhibited include a depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). 

	c.  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.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines 


cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	d.  Paragraph 3-37 of Army Regulation 27-10 provides for the filing of an NJP for Soldiers in the rank/grade of specialist or corporal and below in local unit NJP or personnel files and are to be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another general courts-marital convening authority area, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 5 (Filing Instructions) of DA Form 2627 as “Not Applicable (N/A).” 

	e.  Army Regulation 27-10 also provides for the setting aside and restoration of any rights, privileges or property affected if a portion of the punishment is reduced. Punishment is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  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.  Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  In cases where administrative error results in incorrect entries on DA Form 2627, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

	f.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL for not more than 3 days is confinement for 1 month, reduction to the lowest enlisted grade, restriction, hard labor without confinement and forfeiture of two-thirds pay and allowances for 1 month.

	g.  DODD 1332.18, section 3.13 states service members referred for physical disability evaluation shall be afforded, at appropriate stages of processing, comprehensive counseling on the significance of the actions proposed and the related rights, entitlements, and benefits.



DISCUSSION AND CONCLUSIONS:

1.  Through counsel, the applicant contends two Article 15s, dated 30 October 2008 and 21 January 2009, should be expunged from his military records, that he be restored $1,617 of forfeited pay, restored to the rank of specialist (SPC)/pay grade E-4, and that all back pay and allowances be restored. 

2.  These two NJPs show he was AWOL for two short periods from the WTB when he was undergoing medical treatment for major depression with anxiety disorder.  After considering all the facts and the applicant's overall service record, the imposing company commander within the WTB imposed punishment exercising his command authority by using judgment that was legally and morally appropriate for the admitted offenses.

3.  The applicant accepted these two NJPs and did not request trial by court-martial.  He also did not appeal the imposing commander's punishment at the time of imposition.  

4.  The applicant's 11 years of honorable service to our Nation including his three combat service tours in support of Operation IRAQI FREEDOM and award of the Combat Action Badge is acknowledged.  Additionally, it is understood that the applicant was permanently medically retired with a combined rating of 30 percent and that his disability included major depression (single episode) with anxiety disorder.  It is further acknowledged that within his PEB it was reported he had two periods of hospitalization after suicide attempts.  

5.  However, neither counsel nor the applicant has provided sufficient evidence to show the two NJPs were imposed illegally or unjustly to warrant setting aside the punishments.  To the contrary, documentary evidence shows the applicant was counseled and advised that if his misconduct continued he could be separated under the provisions of Army Regulation 635-200.   

6.  While it is understandable that it could appear the applicant's diagnosis could be attributed to his two AWOL periods, the PEB findings show he had no cognitive impairment, did not exhibit difficulty with his judgment, or have a clinical disturbance of motivation.  In addition, the PEB did not find he had a significant impairment in establishing or maintaining social relationships.  In fact, the PEB did not find the applicant had PTSD as counsel states.  The PEB shows the applicant's diagnosis was major depression with anxiety disorder not PTSD as counsel stated.  


7.  Counsel has failed to show through documentary evidence that the two NJPs were improperly imposed or that an injustice occurred.  Therefore, there are no grounds to grant his request to "set aside" or expunge the applicant's NJPs and restore his rank, lost wages, and reimbursement of forfeited pay.  The applicant committed a violation of the UCMJ with a maximum punishment of confinement for one month, reduction in grade, restriction, hard labor without confinement and forfeiture of two-thirds pay for one month.  

8.  The Board starts its consideration of each case with the presumption of administrative regularity.  The applicant or his counsel has the burden of proving an error or injustice occurred by a preponderance of the evidence submitted to the Board.  Counsel failed to provide any evidence to show the applicant was not properly counseled in accordance with DODD 1332.18, section 3.13.  In fact, the PEB proceedings show the applicant was counseled on 10 February 2009 and he also acknowledged he was counseled.  Therefore, there is no merit in the counsel's statement that his client was not counseled during the physical separation 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)                                         AR20100008431



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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