IN THE CASE OF:  

		BOARD DATE: 29 July 2014

		DOCKET NUMBER:  AR20130018683 


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 reinstatement of his rank of specialist (SPC)/E-4.

2.  The applicant states:

	a.  He received an honorable discharge due to severe chronic post-traumatic stress disorder (PTSD).  He had served a 13-month tour in Afghanistan and was on his second deployment to Iraq.  Due to an underlying medical illness he was unable to return to Iraq after completing environmental and morale leave (EML).

	b.  On his way back to Iraq, he suffered a severe anxiety attack that left him disoriented at a Texas airport.  With the help of his wife, he returned to his base of Fort Carson, Colorado, where he sought help from a chaplain and returned to his unit's rear detachment.  They sent him to see a doctor at the behavioral health clinic who diagnosed him with severe chronic PTSD.  Immediately the doctor started him in treatment and counseling.  His rear detachment put him on extra duty and had him serve on funeral detail as well as other details. 

	c.  Three months later, at the beginning of the medical evaluation board (MEB) process, his rear detachment command served him with nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for missing movement.  The punishment was 45 days of extra duty and reduction in pay and rank. 

	d.  Due to the immense pressure and degrading response from his rear detachment, he incurred further stress and depression that sent him further into a downward spiral.  He has documentation to prove he was suffering from PTSD after his first deployment.  

	e.  On his post-deployment questionnaire he answered the questions truthfully indicating he was having sleep issues, nightmares, etc.  He had never spoken to anyone about it and thought it would go away.  He was a good Soldier and never had any disciplinary actions until this point.  His tour in Iraq came one year after his first deployment and worsened his PTSD.

	f.  In March of 2007, the doctors wanted to proceed with the MEB.  His chain of command told him that if he went back to Iraq they would not reduce him in rank, but if he proceeded with the MEB then they would move forward with charging him with "Missing Movement.”  He did not want to let his unit down so he agreed to go back, even though he knew he shouldn't and the doctors believed he needed an MEB.  When he was unable to go back because of his disability, the MEB started and his unit charged him and reduced him in rank. This put a financial hardship on his family, as well as sending him into a further downward spiral. 

	g.  The NJP was a result of a medical illness and not a behavioral issue.  He was a plaintiff in the "Sabo" class action suit that placed him on retroactive retirement from the military.  Since his discharge, it has been recognized that he suffered from an illness at the time of his NJP.  He should not have been punished for having had a medical issue.  At the time of the NJP, he was under the care of the doctors who recognized he was having a medical issue.  His rear detachment chain of command told him that had he sought help a day before he was to return to Iraq they would not have been able to give him the NJP.  Because he was trying to return and did not know he was going to suffer a severe attack, they were able to charge him with missing movement.  This is an injustice as this was incurred due to a medical issue.  

	h.  He is requesting reinstatement of his rank of E-4.  He had a medical issue that caused him to return home and seek treatment.  His medical issue resulted in an honorable discharge and now retirement.  However, because of this same medical issue he was reduced in rank.

	i.  His chain of command was not happy about him seeking treatment for PTSD.  As a result and in an effort to deter future Soldiers from seeking treatment, he received NJP once the MEB process was initiated.  During the time he was in the rear detachment another Solider came home on leave and sought treatment.  He feels that the rear detachment felt it necessary to put a stop to those seeking treatment so more Soldiers would not come home and then not return to the Theater.
	j.  After the MEB process began, he started to receive counseling for very minor and often unwarranted issues.  It was a form of harassment.  Part of his extra duty was to serve on funeral details.  No Soldier suffering from PTSD should be placed on a funeral detail.  The punishments from the NJP made it difficult for him to properly deal with his diagnosis and treatment plan.

3.  The applicant provides copies of:

	a.  Army Commendation Medal Certificate, dated 24 December 2004.

	b.  Standard Form (SF) 600 (Chronological Record of Medical Care) for the period 10 January 2007 to 8 February 2007 showing he was diagnosed with acute stress disorder, chronic PTSD, and insomnia.  He was treated and returned to duty without limitations.

	c.  DA Form 4856 (Developmental Counseling Form), dated 14 February 2007, showing he was counseled for missing movement on 5 January 2007.

	d.  1 March 2007, email note from his commander requesting a re-evaluation of the applicant's status because he indicated he wanted to return to the Theater. 

	e.  DA Form 3349 (Physical Profile) dated 15 February 2007 showing the applicant was placed on a temporary profile so he could be stabilized on his medications.  The expiration date of the profile is 1 March 2007. 

	f.  DA Form 3349, dated 9 March 2007, showing the applicant was issued a permanent profile for anxiety disorder.  He was to have no access to firearms and no assignment remote from definitive psychiatric care.

	g.  DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 
15 March 2007 for missing movement on 5 January.

	h.  2 April 2007 letter from his commander to a member of congress. 

	i.  DA Form 4856, dated 2 April 2007.

	j.  14 April 2007 memorandum, Subject:  Commander's Performance Summary from the applicant's commander for use by the Physical Evaluation Board (PEB).

	k.  DA Form 3947 (MEB Proceedings) showing a diagnosis of PTSD and recommending referral to a PEB. 

	l.  DA Form 199 (PEB Proceedings), dated 7 May 2007, showing the disability description of PTSD with a rating of 0%. 

	m.  17 October 2007, Department of Veterans Affairs (VA) rating decision showing he was rated service-connected for PTSD (30%) and tinnitus (10%).

	n.  DD Form 2860 (Clam for Combat-Related Special Compensation (CRSC)), dated 21 August 2012.

	o.  11 July 2007 orders reassigning him for separation effective 23 July 2007 with separation pay based on 0% disability rating.  These orders were revoked on 8 February 2011.

	p.  8 February 2012 orders announcing he was placed on the Temporary Disability Retirement List (TDRL) with 50% disability effective 27 July 2007.

	q.  18 June 2012 orders showing he was removed from the TDRL and permanently retired at 30% disability effective 27 July 2007.

	r.  DD Form 214 with DD Form 215 (Correction to DD Form 214) showing he was placed on the TDRL as a private (PV1)/E-1 effective 27 July 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 April 2002 and he held military occupational specialty (MOS) 13D (Field Artillery Automated Tactical Data Systems Specialist).  

2.  He served in Afghanistan from 23 March 2004 to 28 March 2005 and in Iraq from 11 October 2006 to 18 December 2006.  He was awarded the:

* Army Commendation Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Afghanistan Campaign Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal
* Army Service Ribbon
* Overseas Service Ribbon (2 Awards)


3.  In a 2 April 2007 letter to a member of congress concerning a complaint by the applicant's wife that he was being punished for having PTSD, his rear detachment commander states that:

	a.  On 3 January 2007, after completing his EML, the applicant reported to the Dallas/Fort Worth (DFW) Personnel Assistance Point (PAP) for his flight back to Iraq.  He was placed in civilian accommodations and scheduled to fly out on
4 January 2007.  He suffered from a panic attack and did not make the flight.  Missing movement is a violation of Article 87, UCMJ.
 
	b.  Instead, he went back to Fort Carson, Colorado, and reported in to his unit's rear detachment on 5 January 2007.  He spoke with the post chaplain and it was recommended he be seen by the Behavioral Health at Evans Army Community Hospital (EACH).  He was issued a temporary profile for Acute Stress Disorder.

	c.  On 14 February 2007, he was counseled that violation of Article 87 would not be tolerated and action would be recommended under the UCMJ.  He acknowledged and agreed with the counseling.

	d.  On 1 March 2007, the applicant expressed that his temporary profile had expired and he wished to return to the theater.  He was told he had to be cleared by the Behavioral Health office in order to deploy and regardless of the outcome UCMJ action would still be imposed for missing previous movement.  Although initially cleared, he received a permanent profile on 9 March 2007 for Anxiety Disorder with a recommendation for an MEB.

	e.  On 15 March 2007, after consulting with the Trial Defense Services, the applicant accepted a field grade NJP for violating Article 87, UCMJ.  He requested and was granted a closed hearing.  He mentioned his medical condition with regard to extenuating circumstances.  His punishment was reduction to PV1; extra duty for 45 days; forfeiture of $650 per month for two months; and restriction to Fort Carson for 45 days.  He appealed, but his appeal was denied. 

	f.  Although the applicant has complied with all orders given to him since the NJP the fact remains he is guilty of violating Article 87 of the UCMJ during a real-world deployment.  At no time during his current deployment or while he was on EML did he seek treatment for his condition or contact either the Forward or Rear Detachment chain of command about his actions until after the fact.  He had the opportunity to notify officials at the DFW PAP in reference to his condition.  Regardless of his current diagnosed condition, he is responsible for his actions.  He was punished for violation of Article 87 of the UCMJ not for being diagnosed with Anxiety Disorder/PTSD. 

4.  In a 14 April 2007 letter to the President of the PEB, the applicant’s unit commander states:

	a.  The applicant was a member of the unit since 2 February 2006.  He deployed with the unit in October 2006 in support of Operation Iraqi Freedom.  During that deployment he worked outside his primary MOS (PMOS) as a driver for a Quick Reaction Force team and Personal Security Detachment team.  He performed his duties and responsibilities to and above what was expected.

	b.  Prior to the 15 March 2007 field grade NJP, he did not have any form of NJP or formal negative counseling. 

	c.  He had previously deployed with his unit in support of Operation Enduring Freedom in March 2004.  During that deployment he worked outside his PMOS as an improvised infantryman.  He was subjected to daily indirect fire attacks and was engaged in numerous small arms fire attacks by enemy combatants. 

	d.  Also during that deployment he began to experience levels of stress outside the norm and problems sleeping.  He never mentioned his condition to his chain of command or sought treatment for his ailments through the local aid station.

	e.  During his redeployment soldier readiness processing (SRP) screening, he made medical personnel aware that he was suffering from stress and problems with sleeping.  He did not receive referrals to behavioral health or any other medical department.  He did not seek treatment on his own after the fact. 

	f.  From April 2005 to January 2007 he did not seek any form of treatment for any type of behavioral health issues.  While deployed he witnessed numerous indirect fire attacks on the forward operating base (FOB) which in one case involved a mass casualty operation for non-combatant civilians.  He was involved in one small arms fire attack; however, he was unable to engage.  

	g.  In December 2006, he went on EML rotation to Fort Carson.  He missed movement by not boarding his flight back into theater without authorization and not notifying anyone in his chain of command until he returned on his own to Fort Carson.  He was referred to the Behavioral Health Clinic at EACH.  He received a temporary profile for acute stress disorder.    On 15 February 2007, he was given a second temporary profile for having an adverse reaction to prescription medications.  In March 2007, he began off-post civilian counseling with his wife once a week as a result of a referral from the Department of Veterans Affairs (VA).  He was issued a permanent profile for anxiety disorder on 9 March 2007.  Since then his duties include stress-free administrative tasks.      

5.  The Defense Finance and Accounting Service shows the applicant served in pay grade E-4 from 1 December 2003 to 12 March 2007 (when he was reduced by the NJP).   

6.  Permanent Orders D249-015, Headquarters, United States Army Hawaii, dated 6 September 2005, show he was awarded the Combat Action Badge for the period 11 March 2004 to 19 April 2005.

7.  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 states 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.  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.

8.  Paragraph 3-28 describes the setting side and restoration actions.  This 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 that clearly and affirmatively injured the substantial rights of the Soldier. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was punished because of his medical condition.  

2.  He reported for his flight back to Iraq but experienced a panic attack and missed the flight.  He accepted NJP for missing movement.  His punishment included reduction to PV1.  His appeal was denied.

3.  While the applicant did miss movement, an offense punishable under the UCMJ, the portion of the imposed punishment reducing his grade to PV1 is a clear injustice because the punishment is too harsh considering all the facts.  The evidence shows he was a good Soldier with a record of a previous deployment to Afghanistan.  He earned the Combat Action Badge and other personal awards for achievement or service.  He indicated after the first redeployment that he was suffering from stress and having problems sleeping.   He completed the SRP and annotated his medical concerns.  There is no evidence that he received any referral to behavioral health or any other medical department after his first deployment.  Therefore, when attempting to return from EML to Iraq, he suffered a panic attack severe enough that his spouse accompanied him back to his duty station for medical treatment.  Notwithstanding the intent of the imposing commander to instill discipline by the use of the NJP, the reduction in rank to PV1 under these circumstances is a clear injustice and warrants a review with the intent to restore his rank to SPC/pay grade E-4.

4.  His rank should be restored with an effective date of 1 December 2003.

5.  The medical evidence clearly shows he was psychologically impaired when he attempted to return to Iraq.  He was eventually permanently retired with 30 percent disability as a PV1.  

6.  Permanent orders awarded him the Combat Action Badge.  Therefore, his DD Form 214 should be corrected to show this award.

7.  In view of the foregoing, the applicant's request should be granted.

BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  setting aside that portion of the punishment listed on the 15 Mach 2007 Article 15 pertaining to reduction to PV1; 

	b.  correcting the grade and rank on his separation and retirement orders and DD Form 214 to show SPC/E-4, with effective date of 1 December 2003.

	c.  paying him all back pay/retired pay due from this action; and

	d.  adding the Combat Action Badge to his DD Form 214.



      _______ _   _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)                                         AR20120013143



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ABCMR Record of Proceedings (cont)                                         AR20130018683



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