IN THE CASE OF

		BOARD DATE:	    17 July 2014

		DOCKET NUMBER:  AR20130017969 


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 statements to counsel and provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, as an act of clemency, the following for the applicant, in effect:

* reduction of the severity of his sentence
* his reduction to the rank/grade of sergeant first class (SFC)/E-7 be set aside (restoration of his rank)
* he be retired in the rank/grade of master sergeant (MSG)/E-8
* or any other relief deemed just/appropriate by the Board

2.  The counsel states:

   a.  The applicant was convicted, pursuant to his plea, by a summary court-martial on 25 January 2011.  He was sentenced to a reduction to pay grade E-7. The evidence demonstrates the applicant, at the time of his misconduct, suffered from undiagnosed and untreated post-traumatic stress disorder (PTSD).  The evidence indicates the summary court-martial officer erroneously believed that despite the reduction the applicant would be permitted to retire in pay grade E-8.


   b.  This court-martial resulted from an unfortunate sequence of events which occurred while the applicant was deployed to Afghanistan in 2010.  These events followed a traumatic attack which left the Operational Detachment Alpha (ODA) team leader and another Soldier dead and a third seriously wounded.  After this, the applicant recognized that he was struggling with depression and combat stress and he requested assistance.  Regrettably, this request was unheeded and the applicant was returned to duty without an assessment or treatment.  The incident of misconduct occurred 4 days later.

   c.  The applicant retained his Special Forces (SF) Tab and his security clearance and was never relieved.  Today, he continues to train young Soldiers as a civilian instructor.  He enlisted in the Army on 21 July 1987 and was retired on 31 March 2012.  At the time of retirement he had earned numerous awards to include the Bronze Star Medal, Meritorious Service Medal (2nd Award), and Army Commendation Medal (3rd Award).

   d.  The applicant served in the SF for 19 years.  He was deployed into combat zones seven times during his career, to include four deployments and 25 months in Afghanistan.  As with most SF Soldiers these deployments consisted of direct engagement with the enemy, encounters with improvised explosive devices, and continuous exposure to death or serious bodily injury.  Like many SF Soldiers, the applicant served at the forefront of this nation's war against terrorism.

   e.  The applicant's last deployment was particularly harrowing.  Two weeks into this deployment, the team leader and another team member were killed in action.  The applicant was with the team leader when he died and could hear the medical evacuation helicopter arriving when the team leader expired.  After this, the applicant was responsible for leading an ODA that lost a team leader, a colleague, and saw another severely wounded.  Not long after this, the applicant lost another close friend and colleague from the French Special Air Service who was killed in action.

   f.  The applicant's wife reports that after this event she could tell that the applicant was having a difficult time.  He sounded depressed and withdrawn.  Nevertheless, the applicant strove to fulfill his responsibility to the team. Following this attack, he recognized he was stressed.  He experienced nightmares, lack of sleep, depression, grief, feelings of guilt, and loss of intensity. After speaking with the Detachment Commander and the team, he agreed to travel to Bagram for counseling and possible re-deployment to Fort Bragg, NC, to obtain the needed mental health treatment.


   g.  Consequently from 11 to 15 June 2010, the applicant sought counseling from mental health providers at Bagram.  Unfortunately, the group psychologist was not available and never consulted.  The applicant spoke with some chaplains, but he did not speak to medical personnel.  It was recommended that he "take a knee" and return to the Forward Operating Base (FOB).  The incident which resulted in his summary court-martial followed 4 days later.

   h.  On 22 June 2010, the applicant drove a vehicle on the FOB after drinking and he struck a Soldier.  While there were no serious injuries, this young Soldier received medical treatment for a contusion of the left elbow, lower back pain, neck pain, and a possible concussion.  The applicant was clearly under the influence of alcohol.  What was unknown at the time was the fact that the applicant was also suffering from traumatic brain injury (TBI) which affected his peripheral vision.  This in all probability contributed to the collision with the Soldier walking on the right side of the applicant's vehicle.

   i.  After the incident, the applicant drank again and was discovered under the influence of alcohol.  On this occasion, he purchased alcohol from a junior noncommissioned officer (NCO) and provided alcohol to another enlisted Soldier. The record reflects the applicant was ordered to submit to a command-directed psychological examination only after the investigation was initiated.  The applicant pled guilty to all charges.  The evidence at the court-martial established that the applicant was diagnosed with PTSD, adjustment disorder, depression, and alcohol dependence.

   j.  Prior to the court-martial, the applicant was assigned to the Group S3 and he was never formally relieved of his duties.  He accepted responsibilities for his actions.  Several witnesses attested to his character, duty performance, and his issues with combat stress.  Confirmation of his mental health condition was introduced.  After hearing the evidence the court-martial officer, Major (MAJ) Cxxxxxxxxxx Pxxxx, reduced the applicant to pay grade E-7.  After announcing the sentence, MAJ Pxxxx told both the applicant and his wife that it was his understanding that despite the reduction the applicant would be able to retire as a MSG.  This, as the applicant learned, was not accurate.  Based on the sentence, the applicant is paid as an SFC.  Since his reduction was pursuant to a court-martial he is not entitled to reevaluation at the age of 62.  Consequently, this reduction in rank constitutes a fine that the applicant will continue to pay the rest of his life.

   k.  In April 2012 following his retirement, the applicant was hired by Oak Grove Technologies where he continues to serve his country.  He is currently undergoing treatment for several service-connected medical conditions, to include PTSD and TBI.  His TBI is accompanied by vertigo and a loss of peripheral vision.  According to reports from his wife, the applicant has demonstrated significant improvement since he had been correctly diagnosed and treated.
   
   l.  In accordance with Title 10, U.S. Code (USC), section 1552, this Board is not empowered to set aside a court-martial conviction.  However, this Board has previously recognized that it is empowered to moderate the severity of the sentence imposed at a court-martial.  Such an action is deemed appropriate when the Board determined that "clemency is proper."

   m.  The applicant is a warrior's warrior.  It is lamentable that the applicant was not evaluated by mental health professionals before he returned to duty.  He should have been evaluated by a professional.  Under these circumstances, it is not surprising that the applicant turned to alcohol for self-medication.  His use of alcohol was for survival, not recreation.

   n.  It is in the interest of justice that the applicant's medical diagnosis be taken into account.  It is apparent that he suffered from PTSD and TBI.  These conditions existed in June 2010, but they were undiagnosed and untreated.  What’s more, he sought help.  He attempted to obtain a professional assessment.  He came forward and acknowledged that he was struggling.  For anyone familiar with SF Soldiers, this was a significant step.  Many Soldiers failed to do so because they fear the stigma of a mental health evaluation.  It is unfortunate that the unit failed to appreciate the importance of this respect.  

   o.  He contends that had the applicant been evaluated by a mental health professional, it is likely he would have been redeployed to the United States for treatment and this unfortunate sequence of events would not have occurred.  The applicant has never attempted to blame others for his misconduct.  Nevertheless, his attempt to obtain mental health assistance 4 days prior to this incident amounts to an important extenuating circumstance.  Moreover, his conduct should be viewed in context of his entire military record which is not only outstanding, it is heroic and in keeping with the finest tradition of the SF Soldier.  This is significant mitigation.

   p.  The applicant's record of service to his country is extraordinary.  His service in combat makes him worthy of particular consideration.  Given this record and the circumstances leading to his misconduct, he contends that an act of mercy is proper.  The applicant's case merits clemency.  His conduct in June 2010 represents aberrant behavior.  This is an NCO who routinely put his life on the line for his comrades.  While his conduct was disappointing, it occurred during a period of acute stress.  

3.  Counsel provides copies of the applicant's:

* Enlisted Record Brief
* eighteen award certificates and allied documents (DA Forms 638 (Recommendation for Award)) and orders)
* Operation Just Cause and Operation Desert Storm certificates
* twenty-three course completion diplomas
* nineteen NCO Evaluation Reports (NCOERs)
* Notification of Commanding Officer Referral for Mental Health Evaluation memorandum
* DD Form 458 (Charge Sheet)
* Memorandum for Record (MFR)
* Character of Witness memorandum
* Pending Summary Court-Martial memorandum
* Offer to Plead Guilty and Appendix
* three Offers to Plead Guilty memoranda
* DD Form 2329 (Record of Trial by Summary Court-Martial)
* Appeal of Punishment at Summary Court-Martial memorandum and allied documents
* DA Form 4430 (Department of the Army Report of Result of Trial)
* three Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care)
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* his Affidavit
* wife's Affidavit
* five character reference letters
* four Duty Performance Questionnaires
* nine pictures alleged to be of the applicant

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 21 July 1987.  He served in various assignments in military occupational specialties (MOS) 11H (Heavy Anti-Armor Weapons Infantryman) and 18B (SF Weapons Sergeant).  He served through multiple reenlistments.  He served in Kuwait from 27 June through 27 September 2000.

2.  Counsel provided copies of the applicant's:

   a.  DA Form 1059 (Service School Academic Evaluation Report), which shows the applicant completed the SF Weapons Sergeant Advanced NCO Course on 17 April 2002.
   b.  Operation Just Cause and Operation Desert Storm certificates which show the applicant's participation.

   c.  Twenty-three diplomas which show the applicant's successful completion of each course.

3.  He also served in:

* Iraq from 14 March through 15 May 2003
* Afghanistan from 16 October 2003 through 1 February 2004

4.  He was promoted to pay grade E-8 on 1 July 2007.

5.  He again served in Afghanistan from 19 October 2007 through 1 June 2008, 3 April through 25 July 2009, and 12 January through 16 July 2010.

6.  Counsel also provided copies of the applicant's: 

   a.  Eighteen award certificates and allied documents (DA Form 638 and orders).

   b.  Nineteen NCOERs for the years from 1993 through 2011, which show he was continually rated as "excellent," "successful," and/or "fully capable" and "among the best."

   c.  A Notification of Commanding Officer Referral for Mental Health Evaluation memorandum, dated 23 June 2010, which shows the applicant was notified of his referral for a mental health evaluation based on receipt of reports of his driving erratically and striking a pedestrian while allegedly under the influence of alcohol. The commanding officer stated he felt the alleged alcohol incident coupled with the recent death of the applicant's ODA team leader and team member and another close friend in Afghanistan gave him reason to believe the applicant needed to seek help from a mental health professional.  On the same day, the applicant acknowledged receipt of the notification.

   d.  A DD Form 458, dated 17 November 2010, issued by Headquarters Support Company, 3rd Battalion, 3rd SF Group (Airborne), Fort Bragg, NC, shows the applicant was charged with two specifications of wrongfully consuming alcohol on 22 June and 11 July 2010, one specification of wrongfully transferring alcohol to another Soldier on 11 July 2010, and one specification of operating a vehicle while drunk and causing said vehicle to strike and injure a Soldier on 22 June 2010.  On the same date, he acknowledged the charges and the charges were preferred to trial by a summary court-martial.
   e.  An MFR, dated 17 November 2010, wherein the battalion paralegal acknowledged receipt of the preferred court-martial charges packet.

   f.  A memorandum, dated 19 November 2010, wherein the SF Group Commander recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge.

   g.  An Offer to Plead Guilty and an Appendix, dated 3 December 2010, wherein he offered to plead guilty to the charge and specification.

   h.  Memoranda, dated 7 and 14 December 2010, wherein his company, battalion, and group commanders recommended approval of the applicant's offer to plead guilty.  His battalion commander requested as an exception the chain of command retain the rights to initiate further administrative action against the applicant as deemed appropriate.  His group commander requested as an exception the right to revoke the applicant's SF Tab and to request a reclassification of the applicant to his previous MOS.

   i.  A memorandum, dated 13 January 2011, wherein the applicant was notified of his summary court-martial and his rights.  He acknowledged receipt of the notification on 14 January 2011.

   j.  A Character Witness memorandum, dated 17 January 2011, wherein the applicant's company commander stated the applicant was an NCO with a wealth of knowledge and experience.  He was unfamiliar with the charges brought against the applicant; therefore, he could not speak on that, but he would hope that if leniency was possible, the applicant would receive some.  The applicant had served over 15 years, he served the SF well, and he deserved that to be considered in his summary court-martial.

   k.  A Pending Summary Court-Martial memorandum, dated 18 January 2011, wherein the Command Psychiatrist, Special Operations Command, stated:

		(1)  The applicant signed an authorization for disclosure of medical information to be provided to the pending summary court-martial.  

		(2)  He completed his evaluation of the applicant over two sessions lasting 90 and 60 minutes, respectively, and a review of multiple past encounters by other providers in the electronic medical record.  He did not follow-up with the applicant after these initial encounters since the applicant had already enrolled in an outpatient treatment program, he was fully compliant, and his symptoms appeared to be improving.  The applicant was also enrolled in the Army Substance Abuse Program and had been sober since his last alcohol-related incident while deployed.

		(3)  The applicant had been diagnosed with PTSD and alcohol dependence.  Neither diagnosis precluded him from participating in the summary court-martial.  From a psychiatric perspective, the applicant's pattern of alcohol use was similar to most cases of SF Soldiers he had consulted on and evaluated in the past 4 years given time in service and past deployment history.  It was likely the applicant would continue to suffer from those symptoms over many years if not his entire life.

		(4)  Secondary to stigma, it was fairly typical for Soldiers in the SF community (and in that case the applicant) not to present for behavioral health treatment for multiple reasons.  That did not mean they should not be held accountable for their actions.  He strongly recommended that the appointed summary court-martial take into account the foregoing medical issues given the applicant's past documents, performance, and service record when adjudicating that case.

7.  On 25 January 2011, he was convicted by a summary court-martial of one specification each of wrongfully consuming alcohol, wrongfully transferring alcohol to another Soldier, and operating a vehicle while drunk and causing said vehicle to strike and injure a Soldier.  He was sentenced to a reduction to pay grade E-7.

8.  Counsel further provides copies of the following:

   a.  A DD Form 2329 which shows, on 25 January 2011, the applicant appeared before a summary court-martial without counsel.  He was convicted pursuant to his plea of guilty and he was sentenced to a reduction to pay grade E-7. 

   b.  Three Appeal of Punishment at Summary Court-Martial memoranda, dated 31 January 2011, wherein the individuals recommended clemency in regard to the applicant's punishment.  The individuals stated they agreed that the applicant needed to receive punishment for his action, but a reduction in his rank was harsh under the circumstances.  A forfeiture of pay for 1 month and extra duty would be a viable option.  

9.  A DA Form 4430 shows the convening authority approved the applicant's sentence on 9 February 2011 and he was reduced to pay grade E-7 accordingly.

10.  Counsel also provided copies of three SFs 600, dated 18 July, 9 August, and 10 November 2011, that show the applicant was seen in the Neurology Clinic for neurological complaints, migraine headaches, poor short term memory/ concentration/focus, intermittent sleepwalking, PTSD, and a feeling of coldness of the feet.

11.  He was honorably retired on 31 March 2012.  He was credited with completing 24 years, 8 months, and 10 days of net active service.  His 
DD Form 214 lists in:

* Item 4a (Grade, Rate, or Rank) - SFC
* Item 4b (Pay Grade) - E-7
* Item 12i (Effective Date of Pay Grade) – 9 February 2011

12.  Counsel further provided copies of the following:

   a.  A letter, dated 5 July 2012, wherein an eye surgery specialist attested that the applicant had a history of TBI and demyelinating polyneuropathy.  He stated the applicant complained of occasional double and blurred vision.  Currently, there was no treatment for his condition and the applicant understood that in all likelihood that could be best treated with physical and occupational therapy.

   b.  Affidavits from the applicant and his wife wherein they provided statements pertaining to the incident with led to the death of the ODA team leader and its effect on the applicant.

   c.  Five character reference letters wherein the individuals attested that action taken against the applicant by his chain of command was unjust.  The applicant's entire career, the situation during the last deployment, and his actions with his chain of command should be taken into consideration.

   d.  Four Duty Performance Questionnaires wherein the individuals attested to the applicant as being impressive in his military duties and superior in his leadership ability.

   e.  Nine pictures alleged to be of the applicant.

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, USC, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to change a court-martial conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

14.  Title 10, USC, section 3961, provides that each retired member of the Army, unless entitled to a higher grade under some other provision of law, retires in the Regular grade that he/she holds on the date of his/her retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that on 23 June 2010 during the applicant's third deployment to Afghanistan, his commanding officer referred him for a mental health evaluation based on receipt of reports of his driving erratically and striking a pedestrian while allegedly under the influence of alcohol on 22 June 2010.  The commanding officer stated he felt that the alleged alcohol incident coupled with the recent death of the applicant's ODA team leader and team member, and another close friend in Afghanistan gave him reason to believe the applicant needed to seek help from a mental health professional.  On the same day, the applicant acknowledged receipt of the notification.

2.  On 17 November 2010, he was charged with two specifications of wrongfully consuming alcohol, one specification of wrongfully transferring alcohol to another Soldier, and one specification of operating a vehicle while drunk and causing said vehicle to strike and injure a Soldier.  He entered a guilty plea.  

3.  On 25 January 2011, he was convicted by a summary court-martial of the charges and was sentenced to a reduction to pay grade E-7.  

4.  He was reduced to pay grade E-7 on 9 February 2011.  He was honorably retired in pay grade E-7 on 31 March 2012 after completing over 24 years of net active service.

5.  Counsel’s contentions and the documentation submitted were carefully considered.  However, trial by court-martial was warranted due to the offenses he was charged with.  The evidence of record and the evidence submitted are insufficient to show the applicant's court-martial and/or his reduction to pay grade E-7 were flawed or unjust under the circumstances.

6.  While the evidence shows the applicant was struggling after the death of their team leader, another Soldier, and a close friend, he was referred to mental health for assistance and treatment.  There is no evidence of record and neither the applicant nor counsel provided sufficient evidence to show he sought help prior to the incident or was denied assistance by his chain of command.  While the Board is sympathetic, the fact remains the applicant was a senior NCO, in a leadership position, and he was responsible for his own actions.  

7.  Counsel’s contentions referencing the applicant's PTSD and TBI were also carefully considered.  However, neither the applicant nor counsel have provided sufficient evidence showing PTSD and/or TBI were the contributing factors causing the applicant's alcohol dependence which resulted in his vehicle accident where a Soldier was injured.  

8.  The ABCMR is empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  Given the offenses and absent any mitigating factors, the applicant's reduction to pay grade E-7 appears to be appropriate when weighted against the offenses.  As a result, clemency is not warranted in this case.

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)                                         AR20130017969



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ABCMR Record of Proceedings (cont)                                         AR20130017969



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