IN THE CASE OF:
BOARD DATE: 15 January 2015
DOCKET NUMBER: AR20140009152
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, correction of her military records by setting aside her nonjudicial punishment (NJP) and restoring her rank to staff sergeant, pay grade E-6.
2. The applicant states she was reduced to sergeant, pay grade E-5 due to an alcohol-related incident. Her alcohol abuse and the subsequent incident that led to her reduction are symptoms secondary to her service-connected post-traumatic stress disorder (PTSD). She was self-medicating on alcohol because she was unable to get professional help at the time. It is unjust to punish her for behavior that was secondary to her disability.
3. The applicant provides a copy of a claim for benefits from the Lane County Veterans Services, dated 19 May 2014 (2 pages only).
CONSIDERATION OF EVIDENCE:
1. On 24 June 2004, the applicant, a prior service Solder, entered the Regular Army.
2. On 3 August 2011, the applicant, as a staff sergeant, pay grade E-6, accepted NJP from her battalion commander for failing to go to her appointed place of duty at the prescribed time and for being incapacitated for the proper performance of
duty because of a wrongful previous indulgence of intoxicating liquor. This misconduct occurred on 13 June 2011. She did not appeal her punishment which consisted of:
* Reduction to sergeant, pay grade E-5
* Forfeiture of $1,473.00 pay (suspended)
* Extra duty for 45 days
3. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) approved by the Secretary of the Army on 28 September 2012, shows the applicant had been diagnosed with PTSD rated at 70 percent disabling. It noted that the applicant had related being ambushed during deployment in support of Operation Iraqi Freedom. The PEB recommended placement on the Temporary Disability Retired List (TDRL).
4. On 5 December 2012, the applicant was retired due to a temporary physical disability. She had completed approximately 11 years of active duty service.
5. The applicant has provided two pages of what appears to be a part of a longer report dated 19 May 2014. The report concerns the applicant's physical condition. Paragraph 1 indicates that she was evaluated with having PTSD, rated at 70 percent, with a bipolar disorder, attention deficit hyperactivity disorder, and alcohol abuse. It proposes entitlement to service connection for Department of Veterans Affairs (VA) benefits.
6. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.
a. Chapter 3 implements and amplifies Article 15, UCMJ. It states that the basis for any set aside action is a determination that under all of 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.
b. For the purposes of this regulation, the NJP imposing commander or any subordinate commander may only reduce a Solder from a grade for which he has promotion authority.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that her military records should be corrected by setting aside her NJP and restoring her rank of staff sergeant, pay grade E-6.
2. The available evidence of record shows that the applicant accepted NJP in August 2011 for misconduct performed the previous month. She was reduced one grade to sergeant, pay grade E-5. A review of the NJP proceedings revealed no apparent error or injustice.
3. The applicant argues that she should not have been punished for her misbehavior because she was suffering from PTSD. However, the documentation provided by the applicant is inconclusive because it does not clearly and convincingly show that her misconduct was a direct result of her having PTSD. Furthermore, the evidence does not show when, if ever, her PTSD became so acute as to cause her to abuse alcohol.
4. In view of the above, the applicant's request should be denied.
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) AR20140009152
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140009152
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100023489
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant states she received NJP on 12 June 2010 from her battalion commander. The applicant contends that her military records should be corrected to show that she was retired in the rank of sergeant, pay grade E-5, due to physical disability.
ARMY | BCMR | CY1990-1993 | 9106752
The applicant requests that the portion of the approved special court-martial sentence which reduced him from pay grade E-7 to pay grade E-5 be set aside and his military records be corrected to reflect that he was retired in pay grade E-7. The evidence presented to his court-martial seemed to indicate that the applicant suffered from PTSD and was not in control of his behavior at the time of his AWOL. GRANT AS STATED IN RECOMMENDATION
ARMY | BCMR | CY2011 | 20110004213
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It states after a Soldier is accepted for active duty, discovery of an impairment causing physical disability is not conclusive evidence that the condition was...
ARMY | BCMR | CY2010 | 20100024408
The applicant indicated she was providing medical records with her application; however these records were not with the application when it was received. The commander advised the applicant of her right to have her case considered by a board officers (if she had 6 or more years of total active and reserve service or an under other than honorable conditions recommendation is made by the separation authority), to appear in person before a board officers, to submit statements in her own...
ARMY | BCMR | CY2014 | 20140013344
I then said that you never know Soldier we might even "F_ _ _." Her name is [Soldier's name]. He believes he was a good drill sergeant.
ARMY | BCMR | CY2013 | 20130004766
He also reported problems with sleeping and difficulty concentrating. On 20 April 2010, he attended a PTSD therapy session where a licensed clinical social worker stated he had PTSD and follow-on diagnoses clearly showed the applicant had Axis I PTSD and MDD. The applicant and counsel believe he should have received a medical retirement for his various medical conditions due to being granted a VA disability rating for his service-connected conditions.
ARMY | BCMR | CY2009 | 20090020114
The applicant requests that the punishment imposed against her as a result of being administered a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be set aside. Counsel states: * the applicant's supervisors failed to fully appreciate the gravity of the mental and physical health problems she had been experiencing from August 2002 - August 2008 * nonjudicial punishment (NJP) was imposed against her for two very minor alleged infractions...
AF | PDBR | CY2010 | PD2010-00529
In the seven months since the previous C&P exam, the CI had been hospitalized once for command hallucinations and suicidal ideation. Subsequent VA records indicate the CI was hospitalized at least four more times in 2006-2008 with hallucinations and suicidal ideation, with GAFs ranging from 20 to 58. The Board determined, therefore, that none of the stated conditions were subject to Service disability rating.
ARMY | BCMR | CY2013 | 20130012209
The record further shows: a. she did not demand trial by court-martial; b. she requested a closed hearing; c. she indicated she would offer any matters in defense, extenuation, and/or mitigation in person; d. the imposing commander found the applicant guilty; e. the punishment imposed consisted of reduction to specialist, pay grade E-4, a forfeiture of $832.00 pay, and extra duty for 45 days; f. the applicant appealed the NJP but did not submit any additional matters; and g. the appeal was...
ARMY | BCMR | CY2014 | 20140020527
The applicant provides * B Detachment, 90th Personnel Services Battalion, Unit 23133, Germany, Orders 322-306, dated 18 November 2005 * eight DA Forms 2166-8 (NCO Evaluation Report) covering the periods December 2005 through October 2012 * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) * Article 15 appeal, dated 21 October 2013 * letter to a Member of Congress * two Standard Forms 600 (Chronological Record of Medical Care) * Headquarters ,III Corps and Fort Hood, TX, Orders...