IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100018783 


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 restoration of his rank of specialist (SPC) with back pay and allowances.  

2.  He states he was deployed twice to Iraq and experienced nightmares and sleeping disorders after his deployment and was:

* command referred to behavioral medicine because he couldn’t sleep
* diagnosed with Level 3 Post Traumatic Stress Disorder (PTSD) 
* prescribed with medication for sleep, migraines, and depression

3.  He also states he was punished under Article 15, Uniform Code of Military Justice (UCMJ) for missing formation as a result of his prescription medication causing him to oversleep and was:

* given adverse action that was deferred for six months
* was forced to take 30 days of use/lose leave and was carjacked while on leave
* reduced in rank when he returned to his unit

4.  Prior to his arriving at Fort Rucker, he:

* didn’t have disciplinary problems
* was an E-4 promotable
* was awarded the Combat Action Badge, three Army Commendation Medals, Army Good Conduct Medal and other awards and accolades
* wasn’t given any treatment for PTSD 

5.  He contends:

   a.  His command didn’t have his best interest in mind even though they knew he was receiving treatment for PTSD, counseling, and medication to cope with his new condition.
   
   b.  He only received support from the Army Wounded Warrior Program and doctors at Lyster Army Health Clinic who planned for him to go to the Warrior Transition Unit to be medically retired.

3.  He provides:

* Physical Disability Evaluation System Commander’s Performance and Functional Statement
* Narrative Summary from the Lyster Army Health Clinic
* Physical Evaluation Board Proceedings
* Two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 August 2003 and continued to serve on active duty through two reenlistments.  He served in Iraq from 29 January 2005 to 7 January 2006 and from 13 May 2007 to 12 July 2008.

2.  He was promoted to SPC/E-4 on an unknown date.  

3.  On 17 February 2009, he accepted nonjudicial punishment (NJP) under Article 15 for failing to go to 1330 physical therapy at Lyster Army Medical Center.  His punishment consisted of a reduction to pay grade E-3, forfeiture of $433.00, and 14 days extra duty.  His punishment was suspended and was automatically remitted if not vacated before 16 August 2009.

4.  On 3 August 2009, the suspended punishment imposed on 17 February 2009, was vacated for failing to go to physical training and accountability formation.  A DA Form 4187 (Personnel Action), dated 3 August 2009, shows he was reduced to private first class/E-3 with a new date of rank of 3 August 2009.  

5.  He underwent a psychiatric examination on 21 April 2010 at the Lyster Army Health Clinic, Department Behavioral Medicine, Fort Rucker, AL.  The narrative summary indicated he had been receiving psychiatric treatment since February 2009 for PTSD.  The psychiatrist and psychologist stated he failed to meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 and recommended that he be presented to the Physical Evaluation Board (PEB) for final adjudication.  

6.  On 21 May 2010, he accepted NJP under Article 15 for failing to go to 0830 hours work call.  His punishment consisted of reduction of private, E-2.  A DA Form 4187, dated 21 May 2010, shows he was reduced to private, E-2 with a new date of rank of 20 May 2010.  

7.  His service record doesn’t include his Medical Evaluation Board Proceedings.

8.  On 1 June 2010, an informal PEB determined he was physically unfit due to PTSD following Iraq deployments 2005-2006 and 2007-2008.  The PEB recommended separation with a combined disability percentage of 50 percent and that he be placed on the temporary disability retired list with reexamination during March 2011.  

9.  The PEB proceedings indicated the applicant (‘s):

* was awarded the Combat Action Badge
* condition was unfitting due to lability of mood and sleeplessness which impaired the reliable performance of his signal support (25U) military occupational specialty 
* had no psychiatric hospitalizations
* was on two psychoactive medications

10.  He was discharged on 29 September 2010 under the provisions of Army Regulation 635-40 (Physical Evaluation For Retention, Retirement, Or Separation), paragraph 4-24b(2), by reason of physical disability temporary.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) on his DD Form 214 show he was discharged in the rank and pay grade of private/E-2.

11.  Army Regulation 27-10 (Military Justice) provides the applicable policies for administration of NJP:

	a.  Paragraph 3-24 states that ordinarily punishment is suspended to grant a probation period during which a Soldier may show that the Soldier deserves a remission of the remaining suspended punishment.  An executed punishment of reduction or forfeiture may be suspended only within a period of 4 months after the date imposed.  Suspension of punishment may not be for a period longer than 6 months from the suspension date.  Further misconduct by the Soldier within the period of the suspension may be grounds for vacation of the suspended portion of the punishment.  Unless otherwise stated, an action suspending a punishment automatically includes a condition that the Soldier not violate any punitive article of the UCMJ.

   b.  Paragraph 3-25 states that a commander may vacate any suspended punishment, provided the punishment is of the type and amount the commander could impose and where the commander has determined that the Soldier has committed misconduct (amounting to an offense under the UCMJ) during the suspension period.  The commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the misconduct.  There is no appeal from a decision to vacate a suspension.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions in regard to his medical conditions are acknowledged.  However, his service record does not indicate an error or injustice exists in his case.  
 
2.  His psychiatric examination supports his contention that he was receiving treatment for PTSD.  However, his service record lacks evidence which indicates his command didn’t have his best interest in mind or that he only received support from the Army Wounded Warrior Program.  

3.  His service record shows he received an Article 15 on 17 February 2009 for failing to go to his physical therapy at the Lyster Army Medical Center.  His punishment consisted of a reduction to E-3, forfeiture of $433.00, and 14 days extra duty.  The punishment was suspended, but was later vacated because he had committed the offense of failing to go to his appointed place of duty at the prescribed time.  

4.  He also received an Article 15 on 21 May 2010 for failing to go to 0830 hours work call and he was reduced to private, E-2.  He continued to serve in this pay grade until he was discharged on 29 September 2010.  

5.  In the absence of evidence to the contrary, it is presumed that his reductions in grade from E-4 to E-3 and from E-3 to E2 were correct.  Therefore, there is no basis for setting aside the reductions in rank and grade that resulted from the imposition of NJP or reinstating his rank and grade to SPC/E-4.  



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)                                         AR20100018783





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ABCMR Record of Proceedings (cont)                                         AR20100018783



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