BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20140017154 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 his rank be restored to specialist (SPC)/pay grade E-4. 2. The applicant states he was punished/demoted due to performance difficulties caused by injuries and side effects of medications that he had been taking since suffering severe trauma on duty. 3. The applicant provides: * a list of his medications * Enlisted Record Brief (ERB) * Certificate of Promotion to SPC * service medical records * Department of Veterans Affairs (VA) medical records CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 11 July 2006, he enlisted in the Regular Army for 3 years. 3. On 3 January 2007, he was assigned to Troop F, 2nd Battalion, 3rd Artillery at Fort Hood, TX. 4. On 9 May 2007, he was critically injured as a result of a light medium tactical vehicle (LMTV) accident. The driver of the LMTV in which he was riding swerved to avoid cattle in the road, which caused the vehicle to leave the road and overturn. The applicant sustained pelvic injuries. 5. On 29 May 2007, Headquarters, U.S. Army Garrison, Installation Management Agency, Fort Hood, approved the applicant's injuries as being incurred in line of duty. 6. On 18 October 2007, he was assigned to the Warrior Transition (WT) Battalion at Fort Hood. On 5 November 2007, he was assigned to WT Company A at Fort Hood. 7. On 1 August 2008, he was promoted to SPC with an effective date and a date of rank (DOR) of 1 August 2008. 8. On 4 September 2008, he accepted nonjudicial punishment (NJP) for being disrespectful in deportment to a staff sergeant. The DA Form 2627 (Record of Proceedings under Article 15 Uniform Code of Military Justice (UCMJ) indicates there was a continuation sheet showing additional charge(s). However, the continuation sheet is not available for review. a. The punishment he received included reduction to private first class (PFC)/pay grade E-3. b. The applicant appealed the punishment. On 8 September 2008, a captain of the Judge Advocate General's Corps considered the appeal and stated the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offenses committed. c. The applicant was reduced to PFC with an effective date and a DOR of 8 September 2008. 9. On 6 October 2008, he was assigned to WT Company C at Fort Hood. 10. On 12 December 2008, he was formally counseled for failing to complete corrective training. The applicant stated during the time he was on corrective training he was inside the unit compound for most of the morning. He felt that Sergeant M_______ had personal issues with him and showed signs of immaturity not fitting someone of his rank. Aside from missing a phone call he felt he had conducted himself satisfactorily. 11. His ERB shows he was reduced to private 2/pay grade E-2 on 21 January 2009. There is no record of proceedings showing the indiscipline that resulted in this reduction. 12. On 20 February 2009, he was placed on a temporary profile for major depression and post-traumatic stress disorder (PTSD). The DA Form 3349 (Physical Profile) indicated he needed a Medical Evaluation Board (MEB). 13. On 1 April 2009, he was placed on a permanent profile for major depression/PTSD, chronic left ankle pain, and chronic sacral/low back pain. The DA Form 3349 indicated he needed a MEB. 14. On 7 April 2009, he accepted NJP for behaving himself with disrespect toward a commissioned officer by using a dismissive and disrespectful tone of voice over the phone. The DA Form 2627 indicates there is a continuation sheet showing additional charge(s). However, the continuation sheet is not available for review. His punishment included reduction to private 1 (PV1)/pay grade E-1. The applicant stated he took Ambien every night and it affected every individual differently. He had problems waking up in the morning, but it was not intentional. 15. On 7 June 2009, he was evaluated by Dr. S______, Chief, Consultation-Liaison Psychiatry for a physician-directed MEB. a. Since his accident, the applicant had complained of re-experiencing symptoms of nightmares, flashbacks, and intrusive thoughts, increased arousal to include hyper-startle to loud noises, increased irritability, difficulty falling/staying asleep, increased paranoia, and avoidance symptoms to include avoidance of reminders, avoiding talking about it, avoiding crowds, avoiding interests, and feelings of detachment and numbness, which he stated was "worse now that they have him on all these medications." b. His symptoms were temporally correlated to his LMTV accident and neuropsychiatric testing was performed which did not indicate cognitive issues. c. It appears all of his issues with his unit regarding disciplinary action and loss of rank occurred after his accident. He apparently functioned well in the Army for 2.5 years prior to his accident. He also fit the "classic" pattern of avoidance by overusing alcohol (which he stopped several months ago) and displacement (increased irritability with coworkers and other social encounters) and was avoidant of seeking treatment despite knowing he had an issue with his nightmares and sleep. d. It was the examiner's opinion that the applicant's physical injuries and emotional intensity from the accident likely contributed to his difficulties with his command, not from some inherent behavioral or personality issues, especially given the temporal correlation between his symptoms and having had no major issues with his unit until the accident. His memory and attention problems were also classic of PTSD due to over-activity of the amygdala and hippocampus. Given his re-experiencing, arousal, and avoidance symptoms it was with a reasonable degree of medical certainty that the applicant was suffering from chronic PTSD and it was affecting his ability to perform his military duties. e. His Axis I diagnosis was chronic PTSD – manifested as re-experiencing, arousal, and avoidance symptoms. His stressors were moderate to severe. He had difficulty performing his duties and strained unit and peer relationships. His PTSD symptoms interfered with his ability to perform and function in the military setting. f. The applicant was having trouble performing his duties due to his ongoing psychiatric illness. His PTSD symptoms impaired his ability to function in the military. He had reduced reliability and productivity and difficulty in establishing and maintaining effective work relationships. g. The examiner stated the applicant failed to meet retention standards and was referred to a Physical Evaluation Board (PEB) for final disposition and was competent to participate in the proceedings. 16. On 8 June 2009, he filed a formal equal opportunity complaint. He felt he had been mistreated and discriminated against in his company (WTU, 2nd Battalion) from October 2008 to the present time due to his racial/cultural background. He had been recommended for Article 15's while Caucasian and African-American Soldiers only got a verbal warning. 17. On 7 July 2009, he was formally counseled for failing to report to a 0630 hours accountability formation. When he arrived he stated it was because of the Ambien. He had missed two end-of-the-day formations the prior week and one formation the week before that. His case manager reported that the applicant was not on a dosage high enough for this to be an excuse. 18. On 28 August 2009, he was formally counselled for being late to 0630 hours accountability formation. He again missed accountability formation on 31 August 2009. a. His squad leader documented that while he was aware there had been an increase in dosage of the applicant's sleep medications and his healthcare provider put him on 10 hours of sleep per night, instructions were also provided by his case manager that he needed to take his medication no later than 1900 hours to get 10 hours of sleep and still make accountability formation. b. The applicant stated he had been waking up in the middle of his sleep more frequently due to stress caused by his upcoming separation. His medications had been increased causing him difficulties in showing up to formation on time. 19. An MEB Addendum stated his medications (updated 25 November 2009) were: * Vicodin – given one tab daily under direct observed therapy in clinic, which he reported did little for his chronic pain * Neurontin – three times daily * Ambien – nightly for insomnia * Zoloft – daily per psychiatry * Provigil – daily 20. On 9 December 2009, a MEB determined the applicant did not meet retention standards for: * PTSD * chronic left ankle pain secondary to fracture * chronic lower back and sacral pain secondary to fracture 21. The MEB recommended he be referred to a PEB. The applicant agreed with the board's findings and recommendation. 22. On 26 January 2010, a PEB found the applicant unfit for duty for: a. PTSD following a training accident in which he reported he was pinned inside an LMTV after it flipped. He developed behavioral problems which he attributed to this event and reported difficulty concentrating and increased irritability. This was unfitting due to the difficulties he appeared to have accepting orders and information from his chain of command and difficulties with relationships. He met the criteria for a 30 percent (%) disability rating based on occupational and social impairment with occasional decrease in work efficiencies. He was temporarily rated at 50% in accordance with VA Schedule for Rating Disabilities (VASRD) section 4.129. b. Sacral displacement following sacral fracture. The pain he had limited his ability to lift objects, climb on and off vehicles, and perform impact activities. He was rated at 20% for limitation of forward flexion. c. Limitation of motion of left ankle following fracture of the lateral malleolus. This was unfitting since his pain and limitation interfered with running, marching, and maneuvering over uneven terrain. He was rated 10% for moderate limitation of motion. 23. The PEB recommended a combined rating of 60% and that the applicant be placed on the Temporary Disability Retired List (TDRL) with a reexamination during October 2010. 24. On 24 April 2010, he was retired and placed on the TDRL the following day with a 60% disability rating. He completed 3 years, 9 months, and 14 days of active service. His orders for placement on the TDRL show him as a PV1 and his retirement grade as PV1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 24 April 2010 shows his rank as PV1, his pay grade as E01, and the effective date of pay grade as 7 April 2009. 25. On 22 August 2013, a PEB found the applicant unfit for duty for: a. PTSD with an interval history for ongoing symptoms including anxiety, depressed mood, anger dysregulation, physiological reactivity, avoidance of traumatic reminders, and hypervigilance. His condition was likely to worsen if returned to active duty. Adjudicatively stable for final rating of 50%. b. Status post sacral fracture with back pain persisting throughout the TDRL period. Stable for final rating of 20%. c. Status post left ankle fracture with pain worsening during the TDRL period. Adjudicated for final disability rating of 20%. d. Criteria for total disability rating were met based on rating criteria and an inability to secure or follow a substantially gainful occupation. 26. The PEB recommended a combined rating of 100% and that he be permanently retired for disability. 27. On 12 September 2013, he was removed from the TDRL and permanently retired with a disability rating of 100%. His orders for permanent retirement show his grade as PV1. 28. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 29. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 30. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 31. The ABCMR is not a court, nor is it an investigative agency. Determinations are based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct the following factors must be carefully considered: * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 32. Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice. a. Paragraph 3-4 states that a commander will personally exercise discretion in the non-judicial punishment process by: (1) evaluating the case to determine whether proceedings under Article 15 should be initiated; (2) determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and (3) determining the amount and nature of any punishment, if punishment is appropriate. b. Setting aside and restoration 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. Nonjudicial punishment 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. c. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action. DISCUSSION AND CONCLUSIONS: 1. The applicant had no acts of indiscipline during the first 2 years of his enlistment and he was promoted to SPC on 1 August 2008. His first NJP, reducing him from SPC, occurred 11 months after the LMTV rollover accident. 2. The Chief, Consultation-Liaison Psychiatry stated: a. The applicant fit the "classic" pattern of avoidance by overusing alcohol and displacement (increased irritability with coworkers and other social encounters) and was avoidant of seeking treatment despite knowing he had an issue with his nightmares and sleep. b. The applicant's physical injuries and emotional intensity from the accident likely contributed to his difficulties with his command, not from some inherent behavioral or personality issues, especially given the temporal correlation between his symptoms and having had no major issues with his unit until the accident. His memory and attention problems were also classic of PTSD due to over activity of the amygdala and hippocampus. Given his re-experiencing, arousal, and avoidance symptoms it was with a reasonable degree of medical certainty that the applicant was suffering from chronic PTSD and it was affecting his ability to perform his military duties. c. The applicant was having trouble performing his duties due to his ongoing psychiatric illness. His PTSD symptoms impaired his ability to function in the military. He had reduced reliability and productivity and difficulty in establishing and maintaining effective work relationships. 3. There is sufficient evidence to indicate his PTSD condition was a causative factor in the applicant's misconduct. After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant restoring his rank/grade to SPC with a DOR and an effective date of 1 August 2008 and setting aside any subsequent reductions as a result of NJP. BOARD VOTE: __X______ ___X_____ ___X__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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. Restoring his rank/grade to SPC with a DOR and an effective date of 1 August 2008 and setting aside any subsequent reductions in grade. b. Amending his orders to the TDRL to show his rank as SPC and his retirement grade of rank as SPC. c. Amending his DD Form 214 with a separation date of 24 April 2010 to show in: * Item 4a (Grade, Rate or Rank) - SPC * Item 4b (Pay Grade) - E-4 * Item 12i (Effective Date of Pay Grade) - 2008 08 01 (1 August 2008) d. Amending his orders removing him from the TDRL and permanently retiring him for disability to show his rank as SPC. e. Paying him any pay and allowances he may be due as a result of these corrections. _______ _ 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) AR20140017154 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017154 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1