IN THE CASE OF:	  

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120018287 


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, restoration of his promotion to staff sergeant (SSG).

2.  The applicant states he was reduced from SSG to sergeant (SGT) effective 
1 July 2006.  He had no time to prepare for the Noncommissioned Officer Education System (NCOES) requirements due to the short notice to attend when he returned to his unit from the Coatesville, PA, Department of Veterans Affairs (VA) Medical Center on 12 April 2006 for aggravated post-traumatic stress disorder (PTSD) and the Brecksville VA Facility in Cleveland, OH.

3.  The applicant provides:

* DA Form 4856 (Developmental Counseling Form), dated 29 December 2003
* DA Form 3349 (Physical Profile), dated 5 January 2004 and 3 December 2006
* treatment records from 19 April 2004 to 5 January 2005
* a memorandum, dated 6 May 2004, from the 67th Combat Support Hospital
* DA Form 638 (Recommendation for Award), dated 20 August 2004
* a memorandum for record (MFR), dated 9 December 2004, from the
445th Transportation Company Medium Truck, Mosul, Iraq
* 
Headquarters, 406th Corps Support Battalion, Ann Arbor, MI, Orders 
05-069-06, dated 10 March 2005
* a letter, dated 29 March 2006, from the VA Medical Center, Coatesville, PA
* DA Form 1059 (Service School Academic Evaluation Report), dated 
23 May 2006
* two memoranda, dated 23 May 2006, from the Utah Army National Guard (UTARNG)
* Headquarters, 406th Corps Support Battalion Orders 06-182-0001, dated 1 July 2006
* a letter, dated 9 November 2006, from the VA Medical Center, Battle Creek, MI
* DA Form 7574 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), dated 17 November 2006
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 November 2006
* two MFRs, dated 8 January 2007, from Warrant Officer One N_______, 406th Corps Support Battalion
* DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status), dated 16 January 2007
* DA Form 2166-8 (NCO Evaluation Report) (NCOER) for the period 
1 March 2006 to 28 February 2007
* a letter, dated 16 October 2007, from VA Medical Center, Battle Creek, MI
* a letter, dated 28 May 2008, from the U.S. Army Physical Disability Agency (USAPDA)
* USAPDA Orders D156-16, dated 4 June 2008
* USAPDA Orders D124-13, dated 3 May 2012
* a letter, dated 19 July 2012, from the VA Medical Center, Battle Creek, MI
* an undated letter from John D. Dingell Medical Center, Detroit, MI
* a newspaper article from Chesterton, IN, date unknown

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 

substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He previously served:

* 3 years in the Regular Army
* 1 year, 10 months, and 24 days in the Illinois Army National Guard
* 13 years and 16 days in the U.S. Army Reserve (USAR)

3.  On 17 December 1998, he enlisted in the USAR and continued serving until his retirement.  

4.  On 19 March 2002, he was promoted to SGT.

5.  On 7 December 2003, he was ordered to active duty in support of Operation Iraqi Freedom.

6.  On 29 December 2003, he received counseling prior to referral to behavioral counseling due to his previous mental history and current displays of hostility.  It was the counselor's belief he was under considerable stress and he wanted the applicant to be evaluated for his safety and the safety of those around him.

7.  On 5 January 2004, he received a temporary profile for behavioral health with no limitations.  The profile expired 5 April 2004.

8.  He was deployed to Iraq from 27 February 2004 to 27 February 2005.

9.  A memorandum, dated 6 May 2004, from the 67th Combat Support Hospital indicates the Chief, Mental Health first treated the applicant on 19 April 2004 and had seen him several times since.  He stated:

* the applicant had a history of depression and later of excessive alcohol and amphetamine use, eventually getting treatment at the VA last year
* he described himself as doing well since his treatment and denied any relapse on substances
* his tentative diagnosis was depression, not otherwise specified; PTSD; and stimulant/alcohol dependence by history, now resolved
* the applicant continued to show good improvement and had an excellent prognosis


10.  A DA Form 638, dated 20 August 2004, shows he was awarded the Army Commendation Medal for meritorious service from 28 February 2004 to 
12 November 2004.

11.  On 9 December 2004, his unit recommended him for promotion above his peers to SSG.

12.  Headquarters, 406th Corps Support Battalion, Ann Arbor, MI, Orders 
05-069-06, dated 10 March 2005, promoted him to SSG effective 1 February 2005.

13.  On 29 March 2005, he was released from active duty by reason of completion of required active service.

14.  A letter, dated 29 March 2006, from the VA Medical Center, Coatesville, PA, signed by the staff psychologist, stated the applicant had been hospitalized at the Coatesville VA Medical Center since 5 January 2006.  The letter stated he could resume his usual duties and activities beginning 12 April 2006.

15.  On 13 May 2006, he was enrolled in the NCOES Warrior Leader Course.  A letter, dated 23 May 2006, from the UTARNG notified the applicant he was being released as a student from the Utah Regional Training Institute for failure to meet academic standards.  

16.  The DA Form 1059 for the period 13 May 2006 to 27 May 2006 stated he failed to achieve course standards.  It was recommended the applicant return to the course after extensive study of leadership manuals and publications.  The 
DA Form 1059 also indicated he:

* was unable to pass written exams to standard
* communicated confidently with supervisors, peers, and subordinates
* displayed an eagerness to learn and grow
* supported others serving in leadership positions
* was unable to reference course material using automated technology

17.  On 1 July 2006, he was reduced to SGT from SSG due to failure to complete NCOES requirements.

18.  A DA Form 7574, dated 17 November 2006, was completed by the Battle Creek VA.  The examiner found the applicant not fit to perform military duties from 2 December 2005 to present due to severe PTSD from Iraq war experiences.

19.  A DA Form 2173 found his PTSD due to Iraq war experiences was in the line of duty.

20.  A DA Form 3349, dated 27 December 2006, placed him on a permanent profile for PTSD and inguinal hernia.  He was assigned a:

* 3 (defects or impairments that require significant restriction of use) under L-lower extremities
* 2 (distant visual acuity correctable to not worse than 20/40 and 20/70, or 20/30 and 20/100, or 20/20 and 20/400) under E-eyes
* 3 (satisfactory remission from an acute psychotic or neurotic episode that permits utilization under specific conditions (assignment when outpatient psychiatric treatment is available or certain duties can be avoided)) under S-psychiatric

21.  He received an annual NCOER for the period 1 March 2006 to 28 February 2007.

	a.  Part IV (Army Values/Attributes/Skills/Actions) contains an "X" in all "Yes" items.

	b.  Part IV (Rater) – Values/NCO Responsibilities contains an "X" in the "Success" block in:

* Competence
* Physical Fitness and Military Bearing
* Leadership
* Training

	c.  Part V (Overall Performance and Potential) shows his rater rated him "Fully Capable" in overall potential for promotion and/or service in positions of greater responsibility.  The senior rater rated him Successful (3) in overall performance and Superior (3) in overall potential for promotion and/or service in positions of greater responsibility.

22.  On 26 February 2008, an informal Physical Evaluation Board (PEB) found him unfit for duty due to PTSD.  The PEB recommended a combined disability rating of 50 percent and that he be placed on the Temporary Disability Retired List (TDRL) with a reexamination during August 2009.  The PEB also found his disability was based on an injury or disease received as a direct result of armed conflict or caused by an instrumentality of war, incurred during a period of war as defined by law.

23.  A letter, dated 28 May 2008, from the USAPDA indicated that the applicant's conditional promotion to the rank of SSG was contingent upon his successfully completing the Warrior Leader Course.  Due to his academic failure, the conditional promotion was revoked.  Therefore, the highest grade he successfully served in was SGT.

24.  On 4 July 2008, he was placed on the TDRL with a 50 percent disability rating in the rank of SGT.

25.  On 10 April 2012, an informal PEB found him unfit for duty due to PTSD and Bipolar II disorder.  The PEB recommended a combined disability rating of 70 percent and that he be permanently retired due to disability.  The PEB also found his disability was based on an injury or disease received as a direct result of armed conflict or caused by an instrumentality of war, incurred during a period of war as defined by law.

26.  On 3 May 2012, he was removed from the TDRL and permanently retired with a disability rating of 70 percent in the rank of SGT.

27.  He provided a letter, dated 19 July 2012, from the VA Medical Center, Battle Creek, MI that shows he received treatment at:

* Brecksville VA facility in Cleveland, OH during October and November 2005, discharged on 10 November 2005
* VA facility in Coatesville, PA from January to April 2006

28.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribed policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of USAR Soldiers.

	a.  Paragraph 7-13d stated a Soldier who accepts a promotion with the
condition that he or she must enroll in, and successfully complete, a specified NCOES course, and fails to meet those conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a "No-Show," will be reduced to the grade and rank held prior to the conditional promotion.

	b.  Paragraph 8-2 stated NCOES courses are progressive and parallel the U.S. Army NCO rank structure.  Therefore, an NCO must be a graduate
of the educational course required by the NCOES for his or her current grade.  A Soldier with the rank of:

* SGT must be a graduate of the Warrior Leader Course
* SSG must be a graduate of the Basic Noncommissioned Officer 	Course (BNCOC)

	c.  Paragraph 8-19 stated a Soldier may be promoted on the condition he or she enroll in and successfully complete the course required for that grade.  If the grade requires the Soldier be a graduate of BNCOC, the Soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date.  An extra 12 months will be allowed for completion of each phase of BNCOC for courses with more than 2 phases.

	d.  Paragraph 8-21a(4) stated a conditionally-promoted Soldier will be authorized a delay for enrollment in or completion of a required NCOES course when the Soldier is verified as being ill or injured to a degree that prevents enrollment or course completion.

	e.  Paragraph 8-22 b(1) stated when a Soldier fails to complete a required NCOES course and the failure is a result of a delay cited in paragraph 8-21 no adverse action will be brought against the Soldier.  The Soldier should be reenrolled as soon as possible after the reason for the delay has been satisfied.

	f.  Paragraph 8-22b(3) stated when a Soldier is eliminated from a course for academic failure, or for reasons other than for cause, the Soldier’s name will be removed from a promotion list and if conditionally promoted, the Soldier will be
reduced per paragraph 7-13d.

DISCUSSION AND CONCLUSIONS:

1.  He had been treated for depression prior to his deployment to Iraq in February 2004 and again received treatment while he was in Iraq.

2.  He was awarded the Army Commendation Medal for meritorious service while in Iraq and his unit recommended him for promotion to SSG above his peers. 

3.  He was promoted to SSG effective 1 February 2005.  He had 12 months to be enrolled in BNCOC and he had to be a graduate of BNCOC within 24 months of the Phase I completion date.

4.  After his release from active duty, on 29 March 2005, he was hospitalized in the Brecksville VA facility in Cleveland, OH during October and November 2005 and in the VA Medical Center in Coatesville, PA from 5 January 2006 to April 2006.  A letter from the VA Medical Center stated he could resume his usual duties beginning 12 April 2006.

5.  The NCOER he received for the period from 1 March 2006 to 28 February 2007 indicated he was fully capable of performing the duties of his rank and military occupational specialty.

6.  During the period of the above NCOER he was enrolled in the NCOES Warrior Leadership Course on 13 May 2006.  He failed to achieve course standards and he was released from the course with the recommendation to return after extensive study of leadership manuals and publications.  Specifically his failure was due to his:

* inability to pass written exams to standard
* inability to reference course material using automated technology

Therefore, the reasons for his failure to achieve course standards were academic.

7.  There is no mention of a medical condition or illness preventing him from successfully completing the NCOES requirement.  

8.  Therefore, his reduction from SSG to SGT in accordance with 
paragraph 7-13d of Army Regulation 140-158 was correct.  Because he failed to complete the NCOES requirements for SSG, he did not satisfactorily serve in the grade of SSG.

9.  In view of the above, there is no basis to restore his rank to SSG.

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)                                         AR20120018287



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ABCMR Record of Proceedings (cont)                                         AR20120018287



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