BOARD DATE:	  9 August 2011 

		DOCKET NUMBER:  AR20100022638 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank was restored to staff sergeant (SSG)/E-6.

2.  He states he was medically retired from the military with a combined disability rating of 80 percent.  His injuries resulted in the impairment of his memory and cognitive skills and this contributed to his reduction in rank (twice) for the very first time in his career.  

3.  He states that both reductions occurred after he returned from two consecutive tours in Iraq and prior to his command referral for a Mental Status Evaluation (MSE) as part of a pending separation action under paragraph
14-12b, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

4.  He also states that during the time in question, he was diagnosed to be suffering from Post Traumatic Stress Disorder (PTSD), a Traumatic Brain Injury (TBI), and severe depression.  He believes his rank should be restored to SSG due to his mental status at the time he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).

5.  He provided his:

* Medical Evaluation Board (MEB) results
* Physical Evaluation Board (PEB) results
* Memorandum for a Disability Grade Determination 

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Pennsylvania Army National Guard on 
5 October 2000 he enlisted in the Regular Army (RA) for 4 years.  He serve in military occupational specialty (MOS) 88M (Motor Transport Operator) through a series of reenlistments.

2.  A Noncommissioned Officer Evaluation Report (NCOER) he received for the period February 2005 through January 2006 shows in Part I (Administrative Data), item c (Rank), Sergeant (SGT) and item d (Date of Rank (DOR)), 
1 February 2004.

3.  His military personnel record contains Headquarters, National Training Center and Fort Irwin, Orders 025-16, dated 25 January 2006, which show he was promoted to SSG with a DOR of 1 February 2006.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
30 October 2006, shows he accept NJP on 16 October 2006 for the following reasons:

* Violation of Article 107, UCMJ by making a false statement to a superior noncommissioned officer with the intent to deceive
* Leaving his unit in an absent without leave (AWOL) status from 17 to 
19 October 2006, which is a violation of Article 86, UCMJ 
* He was reduced to the rank of sergeant (SGT) E-5 with a DOR of 
30 October 2006 and a forfeiture of $1,201.00 pay for 2 months (suspended)  

5.  A second DA Form 2627, dated 30 April 2009, shows he was administered NJP for stealing a pair of desert combat boots from the Army and Air Force Exchange Service on 19 November 2008.  He was reduced to the rank of specialist (SPC)/E-4 and a forfeiture of $1,109.00 pay for 2 months.  

6.  There is no evidence of any court-martial convictions.

7.  His Enlisted Record Brief (ERB) shows the following:

* Section I – Assignment Information (Overseas/Deployment Combat Duty) from:


* 3 April 2003 to 4 April 2004, service in Iraq
* 27 November 2004 to 19 November 2005, service in Iraq

* Section III – Service Data (DOR):

* SSG E-6 – 1 February 2006
* SGT E-5 – 30 October 2006
* SPC E-4 – 30 June 2009

8.  On 3 June 2009, the applicant was referred to Behavioral Health for an assessment as a part of his separation processing action under the provisions of paragraph 14-12b, Army Regulation 635-200, patterns of misconduct.

9.  After his assessment, he was further referred to an MEB by the medical staff at Landstuhl Regional Medical Center.  On 16 November 2009, his case was considered by an MEB:  

	a.  An Optional Form (OF) 275 (Medical Evaluation Board Summary), Item c (Synopsis of Events Leading to MEB Referral) shows:

		(1)  On 19 June 2009, after further evaluation, he was diagnosed with PTSD.  He was experiencing insomnia, nightmares, irritability, emotional numbing, flashbacks, dissociation, and other symptoms of PTSD.

		(2)  After he returned from his second tour in Iraq in March 2006 his symptoms of PTSD increased; however, he did not understand what he was experiencing or why, and did not talk to anyone about his problems until his command referral on 3 June 2009.

	b.  Item J (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), Diagnostic criteria for Code 309.81 PTSD) indicates:

		(1)  The person has been exposed to a traumatic event in which both of the following were present:

		(a)  The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.  The applicant had two 15-month deployments with just 4 months between the deployments (he actually had two 12-month deployments with 7 months between them) and he was exposed to severe combat stress (CES = 34, heavy).  He described the death of his best friend R_____ in July 2003 as the most traumatic experience.  His Humvee was hit by an improvised explosive device (IED) and he was thrown from the vehicle.  He pulled one Soldier to safety and two others were able to evacuate the vehicle before it caught fire.  His friend R_____, who was also the gunner, was trapped in the vehicle and burned to death before him.  He remembered the vivid sensory experiences of hearing the screaming and wailing, smelling the burning, and seeing the fire and his friend’s face staring at him with sightless eyes.  He also witnessed the death of two young friends in Fallujah, during an ambush.  He recalled a third event in the summer of 2003 during another ambush at which time his buddy was hit and he saw the blood and heard the screams.

		(b)  His response involved intense fear, helplessness, or horror.  All [of] his best friends were killed in action in front of him.  The trauma was particularly emotional because he had promised his buddies and their families he would keep them safe.

		(2)  The traumatic event was persistently reexperienced in one (or more) of the following ways:

		(a)  Recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions.  He sees guns and fire all of the time, and he hears the noises of screaming/wailing, and rockets going off.

		(b)  Recurrent distressing dreams of the event.  He still had nightmares 4 to 5 times a week, particularly of the explosion when he was thrown from the Humvee.

		(c)  Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated).  He reported having flashbacks twice a week that were triggered by working in the weapons room.  He also had periods of dissociative flashback episodes.  He had frequent audio and visual hallucinations of fire, mortars, screaming, and of his friend R____ who was killed in the first tour.   He even noted that he sometimes sees and hears his friend, who talks to him and asks him what happened, and beckons him to come with him, and so on.

		(d)  Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.  He is triggered multiple times per day and reported feeling angry and scared, and sometimes he would blank out.

		(e)  Physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.  He stated that he felt sick to his stomach, has racing heart, shortness of breath, clammy skin and lightheadedness.

		(3)  Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma).  In this section of the diagnosis, he reported he isolates himself as much as possible and tries to avoid being around the arms room, watching war movies or the news.  He also has a quiet room at home and avoids interaction with his family, although before his deployments he spent quality time with them.  He cannot relate to those who have not deployed to Iraq or Afghanistan.  He feels guilt and shame about his buddies being killed, so he is unworthy to be around others.

		(4)  Persistent symptoms of increased arousal (not present before the trauma).  He only sleeps about two hours per night and has combat related nightmares almost every night.  Everything bothers him, even his kids.  At one point he had thoughts of harming people in his unit, but he was able to keep quiet and remove himself from the situation.  He is also very forgetful and confused.  He has trouble driving and gets his medical appoints confused or misses them, he cannot take his medication by himself, his wife administers his medication to him.

		(5)  The duration of the disturbance is more than 1 a month.  His symptoms began in the year 2003 and have been increasing over time.

		(6)  The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.  The board noted that he had been demoted in rank twice and fined thousands of dollars after receiving two Article 15s.  His command was initiating separation action for patterns of misconduct.  He had no social or leisure activities, and decreased connection with loved ones.  He snaps at his children and spends most of his time in his quiet room.

10.  Item L (DSM-IV TR Mutilaxial Assessment and Discussion) of the MEB shows his diagnosis under Axis I:  Chronic PTSD, Severe Major Depressive Disorder, Moderate-Severe was permanently aggravated by his military service and occurred in the line of duty.  The board also noted that he did not meet the retention standards of Army Regulation 40-501 (Medical Retention Standards), chapter 3, paragraph 33 (Anxiety Disorder) and paragraph 32 (Mood Disorder) due to persistence or recurrence of symptoms resulting in interference with effective military performance.  

11.  A copy of his PEB proceedings, dated 1 June 2010, show his grade as SPC/E-4, he was found physically unfit, and the recommendation was a combined rating of 80 percent for the following disabilities:

* PTSD – 50 percent
* Degenerative arthritis of the cervical spine – 30 percent
* Degenerative arthritis of the thoracolumbar spine – 20 percent
* Arthritis due to trauma – 10 percent
* Tenosynovitis – 10 percent

12.  His PEB proceedings also show:

	a.  He was injured by shrapnel and the blast from an IED while serving in Iraq between 3 April 2003 and 4 April 2004, during a period of war.

	b.  He was also psychiatrically injured while serving in Iraq, during a period of war between 3 April 2003 and 4 April 2004 and between 27 November 2004 and 
19 November 2005.

	c.  His disability was incurred in a combat zone or during the performance of duty in combat-related operations as designated by the Secretary of Defense under the provisions of Title 10, U.S. Code, Section 1212 and the National Defense Authorization Act of 2008, Section 1646.

	d.  He concurred with the findings of the board and waived his right to a formal hearing.  He signed this document on 8 June 2010. 

13.  He provided an Army Review Boards Agency memorandum, dated 30 June 2010, Subject:  Disability Grade Determination.  This document shows the Army Grade Determination Review Board (AGDRB) convened on 29 June 2010 to consider his case.  After a thorough review of his records and the PEB proceedings, the board determined the highest grade he satisfactorily served in for the purpose of computation of disability retirement pay was his current grade of SPC/E-4.  

14.  On 28 September 2010, he was honorably retired and placed on the Temporary Disability Retired List (TDRL) in the rank of SPC/E-4.  The effective date of pay grade shows 30 June 2009.  He completed a total of 9 years, 
11 months, and 24 days of net active service and 2 years, 1 month, and 21 days of prior inactive service.   

15.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  

16.  Paragraph 2-4 of the same regulation provides guidance on grade determination decisions.  It states, in part, that although a lower grade determination may affect an individual adversely, it is not punitive.  The
AGDRB will consider each case on its own merits and a determination will be based on the Soldier’s overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability. 

17.  The circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following:

	a.  Medical reasons, which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance. 

	b.  Compassionate circumstances. 

	c.  Length of time in grade (TIG).  The AGDRB cannot waive statutory TIG requirements for retirement at the current grade.

	d.  Active duty service obligation policies which are addressed in Army Regulation 635-200; can be waived by operation of law in disability cases.

	e.  Performance level, as reflected in evaluation reports and other portions of the service record that reflect performance. 

	f.  Nature and severity of misconduct, if any.  Grade determinations are not considered punitive and the standard for grade determinations is “highest grade satisfactorily served” not whether the individual has been sufficiently punished.

	g.  The grade at which the misconduct was committed.

18.  Paragraph 2-5 of Army Regulation 15-80 states that while enlisted Soldiers may be reduced in grade by courts-martial, NJP, administrative separation proceedings, or inefficiency boards, enlisted grade determinations cannot result in reduction of an enlisted Soldier’s or retiree’s current grade.  Enlisted grade determinations will result in either a decision to retain the individual’s current grade or to advance to a higher grade in which the individual satisfactorily served.

19.  Paragraph 2-10 (Reviews) of the same regulation states that if a Soldier, retiree, or other former Soldier believes an error or injustice has occurred with respect to his or her grade determination, the individual can apply to the ABCMR for relief. 

20.  Paragraph 3-3 (Physical Disability Cases) of the same regulation states that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law under Title 10, U.S. Code, sections 1212 and 1372.   

21.  Title 10, U.S. Code, Section 1202 (Regulars and Members on Active Duty for more than 30 Days) states that upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if it has also been determined that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL, with retired pay computed under section 1401 of this title.

22.  Title 10, U.S. Code Section 1372 (Grade on Retirement for Physical Disability: members of the Armed Forces), provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability, or whose name is placed on the TDRL, is entitled to the grade equivalent to the highest of the following: (1) The grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired.  (2) The highest temporary grade or rank in which he served satisfactorily, as determined by the service Secretary.  (3) The permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  (4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

23.  Title 10, U. S. Code, section 3964 states an enlisted member of the RA is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served satisfactorily on active duty.



DISCUSSION AND CONCLUSIONS:

1.  Although it appears his NJP proceedings were accomplished in accordance with the applicable law and regulation it is clear there are significant mitigating factors and equity considerations that should be addressed in this case.  

2.  The evidence clearly shows in the MEB narrative summary that the applicant was diagnosed with severe PTSD due to traumatic events which occurred between April 2003 and April 2004 and November 2004 and November 2005 while serving in Iraq.  He accepted the first NJP in 2006 for giving a false statement with the intent to deceive and for going AWOL for 2 days.  His second NJP occurred in April 2009 for stealing a pair of desert combat boots.  Both Article 15s were administered after two 12-month deployments to Iraq, and he only had a 7-month break in between the periods of deployment.  

3.  While his actions during these offenses were not in keeping with the highest standards of military service it should be noted that his disabling condition began in the year 2003, and he went totally undiagnosed until his command referred him to a psychiatric clinic pending his separation action under the provisions of Army Regulation 635-200, chapter 14 for misconduct in 2009.  His condition was determined to be severe and his case was presented to a PEB which granted him a combined disability rating of 80 percent.

4.  The available evidence shows his initial DOR to SGT/E-5 was 1 February 2004, and he successfully served in that grade until he was promoted to SSG/  E-6 on 1 February 2006.  He was subsequently demoted to SGT/E-5 on 30 October 2006, after only serving 8 months in the grade of SSG/E-6. 

5.  Notwithstanding the determination made by the AGDRB on 29 June 2010, Army Regulation 15-80 states that the circumstances pertinent to whether a Soldier’s service is found satisfactory may include medical reasons, which may have been a contributing or a decisive factor in a reduction in grade, misconduct, or substandard performance.  These circumstances apply to the applicant.

6.  He successfully served in the military 6 years and was promoted to SSG/E-6 without a blemish in his record.  It was not until he deployed to a combat zone twice for a total of 24 months within a very short period of time without time to recuperate from the first deployment that his disciplinary problems started.  He experienced very harsh conditions due to combat with multiple loses of fellow Soldiers and friends.  There is no doubt that he was hurting mentally and he did not know how to ask for help or understand that he needed help.

7.  The evidence shows he became dysfunctional and he could not perform to the standard that was expected of him, and he acted out in ways that he would not have under normal circumstances.  It is reasonable to believe that the applicant was ill, he committed misconduct due to his illness, and he lost the rank that he earned due to his illness.  Therefore, it would be equitable to restore his rank to SSG.  It appears that he gave his best until he became broken.  It is hard to imagine that any Soldier, who was operating under full mental capacity, would knowingly forfeit thousands of dollars in pay due to an NJP and reduction in rank for a pair of desert combat boots.

8.  It would be appropriate and serve the interest of justice and equity to show the highest rank he successfully held was SSG/E-6, and placing him on the TDRL in the rank of SSG/E-6, effective 29 September 2010, and paying him any back retired pay due as a result of these corrections.

BOARD VOTE:

___x_____  ____x__  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 placing him on the TDRL in the rank of SSG/E-6, effective 29 September 2010, and paying him all retired pay due as a result of these corrections. 



      __________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)                                         AR20100022638



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ABCMR Record of Proceedings (cont)                                         AR20100022638



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