IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110006120 


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 and statement to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's records as follows:

* restoration of his rank/grade to specialist (SPC)/E-4 and issuance of a certificate of discharge reflecting this rank/grade
* audit his pay record to determine what he should have received in pay and allowances as an SPC/E-4 from 1 February 2007 through 27 June 2008
* pay him in arrears the difference between that amount and what he actually received as a private first class (PFC)/E-3 and private (PVT)/E-1 during the same period
* in the alternative, correction of his records to show his rank/grade as private (PV2)/E-2 on 27 June 2008 and payment in arrears of the difference in pay and allowances as described above

2.  Counsel states:

* the applicant was promoted to SPC/E-4 in Iraq, but the paperwork supporting this promotion did not follow him to Fort Hood, TX, after he was wounded in combat
* the rear detachment did not follow through to obtain the necessary paperwork for this promotion
* his chain of command failed to ensure he received appropriate counseling and treatment for post-traumatic stress disorder (PTSD) which ultimately led to substance abuse
* his chain of command took nonjudicial punishment (NJP) against him after he tested positive for drugs and demoted him to PVT/E-1
* after administrative separation action was initiated against him, the separation authority determined the drug abuse was a result of his medical condition
* the applicant was ultimately discharged for physical disability by a physical evaluation board (PEB)
* his leadership failed to acknowledge his battlefield promotion and/or properly award him for his combat service
* his rear detachment commander refused to enroll him in the Warrior Transition Unit (WTU)
* the chain of command demonstrated confusion by processing him simultaneously for misconduct and medical separations
* the Army failed this Soldier
* the Department of Veterans Affairs (VA) found him physically and mentally disabled by his war injuries and PTSD diagnosis concurrent with his discharge from the Army
* there is a direct relationship between substance abuse and PTSD
* the failure of the rear detachment commander to recognize and ensure treatment for PTSD resulted in a pattern of self-destruction, including the drug abuse
* the unit's failure to recognize his promotion to E-4 meant he would be reduced from E-3 to E-1
* if the promotion had been properly recorded, he would have been reduced from E-4 to E-2
* his unit treated him like a drug user rather than a heroic wounded warrior
* the preponderance of evidence supports a conclusion that except for the PTSD, his misconduct would not have happened

3.  Counsel provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* three sworn affidavits from former unit members
* Landstuhl Regional Medical Center History and Medical Examination
* sworn affidavit from applicant's mother
* compact disc record of interview
* commander's performance letter (Psychiatry)
* counseling psychologist's memorandum
* termination of PEB proceedings memorandum
* neuropsychological evaluation
* notification of separation memorandum
* separation authority's disapproval of separation memorandum
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (PEB Proceedings)
* psychiatrist's memorandum
* VA Rating Decision
* Defense Health Board Task Force on Mental Health report
* Internet articles related to drug abuse, PTSD, and stress behaviors in combat
* Field Manual 4-02-51 (Combat and Operational Stress Control) extract

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 March 2005 and held military occupational specialty 19D (Cavalry Scout).  He was initially assigned to the 9th Cavalry Regiment, 1st Cavalry Division, Fort Hood.

2.  On 3 January 2006, he tested positive for marijuana.  The facts and circumstances as well as the disposition of any punishment are not available for review with this case.

3.  On or about 19 April 2006, he was transferred to the 3rd Battalion, 8th Cavalry Regiment, 3rd Heavy Brigade Combat Team.

4.  He was promoted to PV2/E-2 on 23 September 2006 and to PFC/E-3 on 23 December 2006.

5.  He deployed to Kuwait/Iraq in support of Operation Iraqi Freedom on 1 October 2006.

6.  On 7 February 2007, he was driving a military vehicle when two explosions occurred on the roadside.  He sustained injuries to his face, fingers, and right leg. 
He was medically evacuated and admitted at Landstuhl Regional Medical Center, Germany, on 9 February 2007.

7.  He was subsequently evacuated to Darnall Army Medical Center, Fort Hood, on 13 February 2007.  He remained hospitalized until 1 March 2007.  Upon discharge from the hospital, he was assigned to the unit's rear detachment.

8.  On 8 May 2007, he tested positive for cocaine.

9.  On 5 July 2007, he tested positive for cocaine and marijuana.

10.  His Article 15 is not available for review with this case.  However, his Enlisted Record Brief and other documents show or indicate he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 September 2007 for wrongfully using drugs.  His punishment appears to have consisted of a restriction for 45 days, a forfeiture of 1/2 pay for 2 months, and a reduction from PFC/E-3 to PVT/E-1.

11.  On 1 October 2007, he underwent a mental health evaluation and he was diagnosed with PTSD and substance abuse.  The counseling psychologist recommended assigning or attaching him to the WTU.

12.  On 7 November 2007, the rear detachment commander submitted a commander's performance letter pertaining to the applicant.  He stated that during his assignment to the rear detachment, the applicant:

* demonstrated significant difficulty following instructions
* frequently forgot directions or steps
* communicated well with others
* experienced difficulty transitioning from being in a deployed hyper-vigilant state to the slower-paced rear detachment
* struggled with mental health and drug abuse
* demonstrated recklessness or dangerous behavior in that he tested positive for cocaine

13.  On 3 March 2008, he underwent a neuropsychological evaluation at Brooke Army Medical Center, Fort Sam Houston, TX, and was diagnosed as follows:

* axis I –cognitive disorder, not otherwise specified
* axis II – personality disorder (deferred)
* axis III – general medical conditions (combat injuries)
* axis IV – psychological/environmental problems (drug abuse, legal issues, dissatisfaction with the Army, desire to separate)

14.  On 11 March 2008, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  The immediate commander indicated the applicant tested positive for marijuana on 6 January 2006, for cocaine on 8 May 2007, and for marijuana and cocaine on 5 July 2007. 
He recommended a general discharge.

15.  On 12 March 2008, the applicant submitted a statement to his senior commander and the separation authority wherein he requested his neuropsychological evaluation be taken into consideration.  He contended his rear detachment chain of command failed to recognize his medical issues and he did not receive the proper treatment for depression, a traumatic brain injury, and chronic pain.

16.  On 2 April 2008, the separation authority determined the applicant's medical condition was the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation or that there were other circumstances in his case that warranted disability processing instead of administrative processing.  Accordingly, he disapproved the recommendation for administrative separation under paragraph 14-12c of Army Regulation 635-200.

17.  On 5 May 2008, an MEB convened at Fort Hood and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of chronic right leg fatigue.  He was also diagnosed with other medical conditions (cognitive disorder, personality change, depressive disorder, and anxiety disorder), but these conditions met retention standards.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

18.  On 6 May 2008, an informal PEB convened in Fort Sam Houston.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to a muscle-group shrapnel fasciotomy injury with residual muscle fatigue.  He was rated under the VA Scheduled of Rating Disabilities, assigned codes 5399/5312, and granted a 20-percent disability rating.  The PEB recommended his discharge with entitlement to severance pay if otherwise qualified.  He concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.

19.  He was honorably discharged on 27 June 2008 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability – combat related with entitlement to severance pay.  His DD Form 214 shows:

* item 4a (Grade, Rate, or Rank) – "PVT"
* item 4b (Pay Grade) – "E-1"
* item 12h (Effective Date of Pay Grade) – "2007  09  13"

20.  He and/or counsel submit:

	a.  An affidavit from the applicant's former platoon sergeant, dated 18 June 2010, states he served as the platoon sergeant for the scout platoon from 1 June 2006 to 28 February 2007.  He also states that prior to and during the deployment, the applicant was a good Soldier.  After his combat wound, he was medically evacuated to Fort Hood.  He does not know the details involving the problems the applicant encountered, but he knows the unit was overwhelmed.

	b.  An affidavit from the applicant's mother, dated 20 October 2010, describes the applicant's injury, evacuation, treatment, recovery, interaction with the rear detachment commander, challenges he encountered, errors in the rear detachment reporting him as a deserter, mistreatment by the chain of command, NJP, administrative separation, medical processing, discharge, and VA evaluation in lengthy detail.

	c.  An affidavit from the same platoon sergeant, dated 9 November 2010, states that to the best of his recollection the applicant was promoted to SPC/E-4 during the deployment.

	d.  An affidavit from the applicant's former platoon leader, dated 22 November 2010, describes the applicant as a quality trooper when the unit arrived in Iraq.  He did not have any disciplinary problems in Iraq.  After his injury, he was evacuated for treatment.  He also believes the applicant was promoted to SPC in Iraq and that it was out of character for him to cause trouble.

	e.  A compact disc record of interview, dated 30 December 2010;

	f.  A VA Rating Decision, dated 16 July 2008, awards him service-connected disability compensation for PTSD (30 percent), tinnitus (10 percent), headaches (10 percent), residuals of a shrapnel wound (10 percent), and various other medical conditions (0 percent).

	g.  A Study by the Defense Health Board Task Force on Mental Health makes various recommendations to the Department of Defense related to PTSD, traumatic brain injury, combat stress, and other combat-related issues.

	h.  An Internet article by the National Institute on Drug Abuse, dated 3 November 2011, states that stressful events can profoundly influence initiation, continuation, and relapse of drug, alcohol, and tobacco use.

	i.  An Internet article by a doctor, dated 3 November 2011, states that people with PTSD often also have problems with alcohol and drug use.

	j.  An Internet article by the American Family Physician, dated 3 November 2010, describes the diagnostic criteria for PTSD, screening techniques, treatment, management, and prevention.

	k.  An extract of Field Manual 4-02-5, dated 6 July 2006, essentially states that stress reactions may persist or arise long after exposure.

21.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of enlisted personnel.

	a.  Paragraph 1-13 states the promotion order will cite, along with other applicable authority, DA Form 4187-1-R or the memorandum.  The DA Form 4187 or memorandum, approved DA Form 4187-1-R or memorandum, and promotion instrument will be filed in the military personnel file.

	b.  Paragraph 1-23 states the official instrument for promotion is the order.  The promotion order will be used as the source for grade, effective date, and date of rank for all record and pay purposes.   Additionally, a promotion is effective as of the date on the promotion instrument.

	c.  Paragraph 2-3 states the eligibility criteria for automatic promotion to SPC requirements are 24 months of time in service (TIS) and 6 months of time in grade (TIG).  Promotions to SPC may be waived at 18 months of TIS and 3 months of TIG.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record.

23.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

24.  Paragraph 1-22 of Army Regulation 635-200 states:

	a.  When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention under Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, he/she will refer the Soldier to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of MEB.

	b.  If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of Army Regulation 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's general court-martial convening authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated and one of the following has been determined:

* the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination
* other circumstances of the individual case warrant disability processing instead of further processing for administrative separation

	c.  The GCMCA's signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB.  Copies of the GCMCA's decision will be furnished to the unit commander and included in the administrative separation proceedings.  The unit commander will suspend processing of the administrative separation action pending the PEB.  If the Soldier is found physically fit, the administrative separation action will be resumed.  If the Soldier is found physically unfit, the administrative separation action will be abated.


DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 23 March 2005.  He was promoted to PFC/E-3 on 23 September 2006.  He would have qualified for normal (without waiver) promotion to SPC/E-4 on 23 March 2007 (24 months of TIS and 6 months of TIG).  He may have qualified for promotion with a waiver on 23 January 2007 (3 months of TIG).  Either way, there is no evidence in his records that shows he was recommended for or promoted to SPC/E-4.

2.  The statements submitted by the former platoon sergeant and platoon leader cannot be corroborated with evidence (promotion order).  Both individuals indicated they remember the applicant as an SPC/E-4.  Nevertheless, any promotion with a waiver would have had to have been recommended by both individuals to the unit first sergeant who would submit the recommendation to the battalion S-1 for computation and waiver allocations in early January 2007 and would have been effective 23 January 2007.  The applicant was wounded on 7 February 2007.

3.  When he received the Article 15 the applicant was reduced from PFC/E-3 to PVT/E-1, not from SPC/E-4 to a lower grade.  There would have been sufficient time between the date of his return from Iraq (February 2007) to the date he was reduced (September 2007) to establish if he had been previously promoted to SPC/E-4.  Again, there is no documentary evidence that he was recommended for or promoted to SPC/E-4.

4.  The various studies related to PTSD and substance abuse are not in question.  However, the applicant showed his predisposition to using illegal drugs in January 2006, some 10 months prior to his deployment to Iraq.  There is no evidence he suffered from PTSD, depression, or any other medical condition when he tested positive for marijuana at Fort Hood on 6 January 2006.

5.  Counsel argues that had the applicant's rank been correct (SPC/E-4), he would have been reduced two grades to PV2/E-2.  A similar argument can also be made that if he had been previously promoted to SPC/E-4, he could have been reduced from SPC/E-4 to the lowest enlisted grade by the same imposing officer when he accepted the NJP.  His battalion commander had authority to reduce him to the lowest enlisted grade.  Counsel's argument is speculative at best.

6.  This is a case of a repeated drug offender who tested positive for marijuana and/or cocaine on three separate occasions during his 3 years and 3 months of total service.  Notwithstanding his combat service and combat injuries, there is no evidence he was again promoted to PV2/E-2 between the date he was reduced and the date he was discharged.  His rank and grade of PVT/E-1 are correctly shown on his DD Form 214 and there is no reason to change them.

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 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)                                         AR20110006120



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ABCMR Record of Proceedings (cont)                                         AR20110006120



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