BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160002566 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ____x____ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160002566 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. BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160002566 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 her rank to sergeant (SGT)/E-5. 2. The applicant states: a. She was medically retired in a lower grade without the benefit of a review by the Army Grade Determination Review Board. The Army Board for Correction of Military Records has jurisdiction to correct an error or injustice and can act in place of the Army Grade Determination Review Board. b. She wants to be retired from the Army at the highest rank/grade she held. She was medically retired at the reduced rank/grade of specialist (SPC)/E-4. She previously held the rank of SGT. The I Corps Commander reviewed her medical evaluation board and administrative separation proceedings under chapter 14 for misconduct and determined that her medical conditions were a direct or substantial contributing cause of the conduct that led to her recommendation for separation for misconduct and directed her processing through the physical disability system. c. With that in mind, she now requests restoration of her former rank of SGT. If she hadn't had post-traumatic stress disorder (PTSD) symptoms, she more likely than not wouldn't have committed the serious offenses that led to the recommendation for her separation for misconduct. d. She has since been medically retired from the Army with a 70-percent disability rating for PTSD and a 90-percent disability rating from the Department of Veterans Affairs. e. She received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) in September 2014 for three specifications of behaving with disrespect toward a commissioned officer and she was reduced in rank from SGT to SPC. The NJP under Article 15 of the UCMJ was the basis for the recommendation for her separation for misconduct. She received NJP under Article 15 of the UCMJ for her actions while deployed to Afghanistan while serving as a medic exposed to traumatic military and personal stressors. f. She has honorably served her country for over 15 years and she was honorably discharged/medically retired from the Army. 3. The applicant provides: * memorandum from the Commanding General, Headquarters, I Corps, Joint Base Lewis-McChord, Washington, dated 15 May 2015 * undated recommendation for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct * DA Form 2627 (Record of Proceedings, Under Article 15, Uniform Code of Military Justice) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * Page 1 of Department of Veterans Affairs Disability Evaluation System Proposed Rating, dated 19 June 2015 * Physical Disability Information Report, dated 9 September 2015 * three DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports) * Enlisted Record Brief CONSIDERATION OF EVIDENCE: 1. After having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 17 May 2001. 2. On or about 21 May 2004, she completed advanced individual training and was awarded military occupational specialty 91W (Health Care Specialist) (later converted to military occupational specialty 68W). 3. She was promoted to SGT/E-5 effective 1 February 2008. 4. She deployed to Afghanistan on or about 20 December 2013. 5. A DA Form 2627, dated 18 September 2014, shows: a. NJP proceedings were initiated against her under the provisions of Article 15 of the UCMJ for: (1) behaving with disrespect toward her superior commissioned officer (Major C____ M. L____) by saying to her, "I am the Doctor that's fine and whatever I decide goes because I'm the Doctor"; (2) behaving with disrespect toward her superior commissioned officer (Captain M____ A. H____) by rolling her eyes and abruptly walking away while the captain was speaking to her; and (3) behaving with disrespect toward her superior commissioned officer (Captain M____ A. H____) by interrupting her several times when the captain was speaking to an SPC. b. She did not demand trial by court-martial and elected to proceed with a closed hearing. c. She was found guilty of all specifications and sentenced to reduction to SPC/E-4, forfeiture of $1,213.00 pay per month for 1 month (suspended), and extra duty for 30 days. d. She appealed the NJP and submitted additional matters. Her appeal was denied on 28 September 2014. 6. She departed Afghanistan on or about 29 October 2014. 7. On an unknown date, discharge proceedings were initiated against her for misconduct (commission of a serious offense) under the provisions of Army Regulation 635-200, chapter 14. Her company commander cited her disrespectful behavior toward two superior commissioned officers as the reason for the proposed action. 8. On 15 May 2015 after reviewing the applicant's administration separation packet and medical evaluation board proceedings (not available for review), the Commanding General, Headquarters, I Corps, Joint Base Lewis-McChord, Washington, determined her medical condition was a direct or a substantial contributing cause of the conduct that led to the recommendation for administration separation or there are other circumstances in this case that would warrant disability processing instead of further processing for administration separation. He directed her processing through the physical disability system. 9. On 22 June 2015, an informal PEB found her unfit due to PTSD (70-percent disability rating), status post right wrist extensor carpi ulnaris (muscle on the ulnar side of the forearm) repair, now with tendinosis, scapholunate (wrist ligament) tear and degenerative disease, and lumbar degenerative disease with intervertebral disc syndrome of the left sciatic nerve, status post lumbar foraminotomy (surgical procedure to increase space around spinal nerves) with non-symptomatic scar. The PEB recommended her placement on the Temporary Disability Retired List (TDRL) with an 80-percent disability rating. On 7 July 2015, she concurred with the PEB findings and waived a formal hearing. 10. Directorate of Human Resources, Military Personnel Division, Joint Base Lewis-McChord, Washington, Orders 252-0006, dated 9 September 2015, released her from assignment and duty for retirement because of physical disability effective 12 October 2015 and placed her on the TDRL effective 13 October 2015. Her retired grade and date of rank are shown as SPC effective 18 September 2014. 11. On 12 October 2015, she retired in the rank of SPC by reason of temporary disability and was placed on the TDRL effective 13 October 2015 with an 80-percent disability rating. She completed 14 years, 10 months, and 4 days of total active service. 12. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate, or Rank) – SPC * item 4b (Pay Grade) – E-4 * item 12i (Effective Date of Pay Grade) – 18 September 2014 REFERENCES: 1. 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. The authority to impose NJP charges a commander with the responsibility of exercising the commander's authority in an absolutely fair and judicious manner. The imposing commander is not bound by the formal rules of evidence before courts-martial. 2. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. The instructions stated for: a. items 4a and 4b, enter the active duty rank and pay grade at the time of separation; and b. item 12i, enter the effective date of promotion to the current pay grade from the most recent promotion order (or reduction instrument). DISCUSSION: 1. The applicant requests restoration of her rank to SGT/E-5. 2. The evidence of record shows she was deployed to Afghanistan in December 2013 for duties as a health care specialist. 3. In September 2014, she was reduced in rank from SGT to SPC under the provisions of Article 15 of the UCMJ for behaving with disrespect toward two superior commissioned officers. Separation proceedings were initiated against her for misconduct (commission of a serious offense) under the provisions of Army Regulation 635-200, chapter 14. 4. In May 2015, the Commanding General, Headquarters, I Corps, determined her medical condition was a direct or a substantial contributing cause of the conduct that led to the recommendation for administration separation or there were other circumstances in this case that would warrant disability processing instead of further processing for administration separation. He directed her processing through the physical disability system. 5. In June 2015, an informal PEB found her unfit due to PTSD (70-percent disability rating) and several other medical conditions. 6. On 12 October 2015, she retired in the rank of SPC and was placed on the TDRL effective 13 October 2015 with an 80-percent disability rating. 7. She contends she more likely would not have committed the serious offenses that led to her separation recommendation for misconduct if she were not suffering from PTSD symptoms. 8. Although the I Corps Commanding General determined her medical condition was a direct or a substantial contributing cause of the conduct that led to the recommendation for administration separation, there is no evidence showing he set aside the NJP (rank reduction) imposed under the provisions of Article 15 of the UCMJ. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002566 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002566 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2