IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140016942 


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 restoration of his rank to sergeant (SGT)/E-5.

2.  The applicant states:

	a.  He was demoted by an Article 15 and requests restoration of his grade to E-5.

	b.  His reduction in grade is unjust due to the problems he was having because of his disabilities.  He was also singled out and his chain of command was on a witch hunt.

	c.  The proof is in his noncommissioned officer evaluation reports (NCOERs).  His first three NCOERs reflect his proficiency and how he held his grade with pride.

	d.  If he weren't hurt and didn't have so many mental health-related issues, he would not have made any mistakes.

	e.  He is permanently retired now.  Since he was rated 100-percent disabled by the Department of Veterans Affairs (VA), he is being paid by the VA where his rank doesn't matter, although it matters to him.  The day he lost his stripes felt as if someone ripped his heart out.

	f.  He always lived the NCO Creed, but the combination of his traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), and medications made it very hard to function and not have minor slip ups.

3.  The applicant provides:

* self-authored letter, dated 19 September 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* NCOERs
* Standard Form 600 (Chronological Record of Medical Care), dated 15 November 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 July 2005 and trained as an air defense battle management system operator.  He served in Iraq from 29 April 2008 to 12 July 2008.  He was promoted to sergeant effective 1 January 2009.  He served a second tour in Iraq from 23 November 2009 to 24 October 2010.

2.  He provided NCOERs covering the periods 1 January 2009 through 13 February 2012 which show he was rated Fully Capable for his overall potential for promotion and/or service in positions of greater responsibility by his raters and rated Successful-2 for his overall performance by his senior raters.

3.  On 30 August 2013, a medical evaluation board (MEB) diagnosed him with lumbar intervertebral disc syndrome with degenerative arthritis changes and thoracic degenerative disc disease.  The MEB found the following conditions medically acceptable:

* PTSD
* panic disorder
* early onset dysthymic disorder
* attention deficit hyperactivity disorder
* tinnitus
* sprain right hand index finger
* status post left hand fracture
* bilateral wrist strain
* status post left arm fracture
* bilateral shoulder sprain
* status post left elbow fracture with strain
* right elbow sprain
* right ankle sprain
* left and right heel Achilles tendonitis
* right hip strain
* sleep apnea
* right hand scar
* erectile dysfunction
* allergic rhinitis
* bilateral foot tinea pedis (fungal foot infection)
* esophageal reflux
* bilateral wrist carpal tunnel syndrome
* migraine headaches

4.  The MEB recommended his referral to a PEB.  On 4 September 2013, he concurred with the MEB findings and recommendation.

5.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 2 December 2013, shows nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty at the time prescribed (four specifications) and being derelict in the performance of his duties.  His punishment consisted of reduction to specialist (SPC)/E-4, forfeiture of $1,201.00 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days.  He did not appeal the NJP action.

6.  On 3 March 2014, a physical evaluation board (PEB) found the applicant unfit due to:

* lumbar intervertebral disc syndrome with degenerative arthritis and thoracic disc disease
* left lower extremity radiculopathy
* right lower extremity radiculopathy

7.  The PEB determined PTSD was not an unfitting condition and recommended his retirement due to permanent disability (50 percent).

8.  On 22 June 2014, he retired by reason of permanent disability (enhanced) in the rank of SPC/E-4 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.

9.  He provided a Standard Form 600, dated 15 November 2013, which shows his medical problems included chronic PTSD.



10.  He provided a self-authored letter, dated 19 September 2014, which states:

	a.  He deserves his rank back because he satisfactorily held his rank and position.

	b.  He served in a position where the requirement was that of a sergeant first class and he received high evaluations.

	c.  He served and performed his duties well above standards for almost 4 years.

	d.  He encountered two chains of command that disregarded his injuries and provided no support, only punishments.  Even though he had treatment for his injuries, he still strived to be the best he could.

	e.  He performed superbly until he came back from Iraq and a gun turret fell on him and he hit his head.

	f.  This effort is not in the interest of financial gain; it is a matter of honor and pride.

	g.  If it weren't for his disabilities, he wouldn't have lost his rank.

11.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial.  It states the authority to impose NJP charges a commander with the responsibility of exercising the commander's authority in an absolutely fair and judicious manner.  It states the imposing commander is not bound by the formal rules of evidence before courts-martial.

12.  The Department of Defense acknowledges that the condition of PTSD may have been a mitigating factor in a Soldiers' misconduct.  Research has shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the combination of his TBI/PTSD and medications contributed to his mistakes (failing to go to his appointed place of duty at the time prescribed four times and being derelict in the performance of his duties).  However, research has shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

2.  He also contends that if it weren't for his disabilities, he wouldn't have lost his rank.  However, there is insufficient evidence to show any medical condition was the underlying cause for the misconduct that led to his demotion to SPC.

3.  There is no evidence the Article 15, dated 2 December 2013, was improperly imposed and he did not appeal the NJP action.  It appears to have been the commander's judgment that four specifications of failing to repair and one specification of being derelict in the performance of his duties warranted a one-grade reduction.

4.  Based on the foregoing evidence of record, there is an insufficient basis on which to grant the requested relief.

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)                                         AR20140016942



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ABCMR Record of Proceedings (cont)                                         AR20140016942



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