BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20100027611 


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 that his rank be restored to sergeant (SGT)/E-5.

2.  The applicant states he was found to have post traumatic stress disorder (PTSD) from his service in Iraq while serving on his second enlistment in Korea.  He began to have issues and went for a mental health evaluation and the hospital recommended his return home in order to continue the treatment he started his first time out of the service.  They stated that a chapter for adjustment disorder would be the fastest route home to his family and proper help.  He contends that he was messed with for the following two months and eventually was provoked into a confrontation with his first sergeant (1SG).  They knew that he was having nightmares, was on medication, and was not always fully there but forced to stay in the company operations room and do work with the commander and 1SG a room away.  The applicant continues with allegations of wrongdoing by his chain of command.

3.  The applicant provides a Department of Veterans Affairs (DVA) Statement of the Case, and two MEDCOM Forms 699-R (Mental Status Evaluation).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 April 2004 and upon completion of initial entry training was awarded military occupational specialty (MOS) 11B (Infantryman).  He served in Iraq from 18 September 2006 to 
19 October 2007 and was released from active duty on 18 January 2008, in the rank of SGT, after completion of required active service.  On 26 June 2008, he again enlisted for a period of 4 years and 23 weeks in MOS 25P (Microwave Systems Operator - Maintainer) and in the rank of SGT.  

2.  On 11 March 2009, he underwent a mental status evaluation wherein his behavior was found to be aggressive, hostile, and suspicious.  He was fully alert and oriented.  His mood was anxious and manic or hypomanic and his thinking process and thought content were clear and normal.  The evaluating physician opined that the applicant had the capacity to understand and participate in the proceedings and was mentally responsible.  He was diagnosed with adjustment disorder with anxiety and no observed or reported personality defect or disorder evident during the mental status evaluation.  The evaluating physician recommended his immediate discharge from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions).

3.  On 15 April 2009, while serving as a SGT at Camp Humphreys, Korea, he was notified by his battalion commander that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 
2 April 2009, for being disrespectful in language towards his first sergeant, and for failing to go at the time prescribed to his appointed place of duty on diverse occasions during the period 5 - 12 March 2009.  He elected not to demand a trial by court-martial, and instead chose for the matter to be handled by his battalion commander in a closed hearing.

4.  On 22 April 2009, he accepted nonjudicial punishment (NJP).  The punishment consisted of reduction to the grade and rank of specialist (SPC)/E-4, extra duty and restriction for 21 days, and oral reprimand.  He elected to appeal the punishment.

5.  On 28 April 2009, a legal representative of the installation Staff Judge Advocate (SJA) considered his appeal and opined that the proceedings were conducted in accordance with the law and regulations and the punishments imposed were not unjust or disproportionate to the offense committed.  On 
30 April 2009, the appeal authority considered all matters presented and denied the applicant's appeal.

6.  On 4 May 2009, he was informed by his unit commander that he was initiating action to separate him for a mental condition that prohibited him from functioning effectively in the military.  The commander stated the specific reason for the proposed action was the applicant's diagnosis of an adjustment disorder with anxiety.

7.  On 21 May 2009, he was honorably discharged in the rank of SPC under the provisions of Army Regulation 635-200, paragraph 5-17.

8.  He provided a DVA statement that indicates he is currently receiving service connected disability compensation for PTSD.

9.  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.

10.  Paragraph 3-28 of that regulation provides guidance for setting aside the punishment imposed by NJP and restoration of rights, property and privileges.  The setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored.  NJP 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 which 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 an adverse effect on the retention or promotion potential of the Soldier.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date the punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his rank be restored to sergeant has been carefully considered.   

2.  Although he was diagnosed with an adjustment disorder with anxiety, the evaluating physician found him mentally responsible and his thinking process and thought content were found to be clear and normal.  There is no evidence that his misconduct was as a result of the above mentioned condition.

3.  A legal representative of the installation SJA opined that the proceedings were conducted in accordance with the law and regulations and the punishments imposed were not unjust or disproportionate to the offense committed.  Therefore, the evidence in this case suggests that NJP was properly imposed against the applicant with no indications of any procedural errors that may have jeopardized his rights.

4.  Lacking evidence to establish that the applicant did not commit the misconduct for which NJP was imposed, it would not be appropriate to second-guess the chain of command as to the applicant's guilt or innocence in this case. Therefore, there appears to be no basis to set aside the punishment and restore him to his former grade.

5.  In view of the above, there is no basis to grant the requested 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 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)                                         AR20100027611



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ABCMR Record of Proceedings (cont)                                         AR20100027611



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