IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20140020173 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 IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20140020173 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. IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20140020173 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 correction of his retired rank/grade to show sergeant (SGT)/E-5 instead of specialist (SPC)/E-4. 2. The applicant states: * he was placed on the Temporary Disability Retired List (TDRL) on 9 May 2011 * it has been over 3 years since he asked the physical evaluation board (PEB) to retire him at his highest rank of SGT * he held the rank of SGT from 1 July 2004 to 29 April 2008 * he was reduced in rank as a result of court-martial based on an incident due to his post-traumatic stress disorder (PTSD) and he was returned to duty 3. The applicant provides: * Enlisted Record Brief * Seventh U.S. Army Joint Multinational Training Command General Court-Martial Order Number 23, dated 7 October 2008 * two DA Forms 199 (PEB Proceedings), dated 24 August 2009 and 1 December 2014 * U.S. Army Physical Disability Evaluation Agency letter, dated 24 August 2009 * Office of the Judge Advocate General letter, dated 18 November 2009 * self-authored affidavit, dated 20 September 2010 * Headquarters, U.S. Army Medical Department Activity, memorandum, dated 20 September 2010, subject: Request for Retention * Army Review Boards Agency memorandum, dated 15 February 2011, subject: Disability Grade Determination, Title 10, U.S. Code, section 1372, (Applicant) * Headquarters, U.S. Army Garrison Command, Fort Knox, Orders 059-0163, dated 28 February 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * U.S. Army Physical Disability Agency Order D 324-17, dated 20 November 2014 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 27 March 2000. He completed training and he was awarded military occupational specialty 91W (Metal Worker). 2. Seventh U.S. Army Joint Multinational Training Command General Court-Martial Order Number 23, dated 7 October 2008, shows he was tried and found guilty of: * committing an assault upon Ms. N____ M____ by strangling her about the neck with a telephone cord with a means and force likely to produce death or grievous bodily harm at or near Munich, Germany, on or about 9 December 2007 * unlawfully striking Ms. N____ M____ on the head repeatedly with a closed fist at or near Munich, Germany, on or about 9 December 2007 * unlawfully entering the dwelling house of Ms. N____ M____ with intent to commit kidnapping therein at or near Munich, Germany, on or about 9 December 2007 3. On 15 April 2008, his sentence was adjudged and the approved sentence included reduction in rank from SGT to private, forfeiture of $898.00 pay for 4 months, and confinement for 6 months. 4. On 6 April 2009, the separation authority abated the applicant's administrative separation based on the commission of a serious offense and directed his PEB processing. 5. On 1 July 2009, he was advanced to the rank/grade of private/E-2. 6. His DA Form 199, dated 24 August 2009, shows the Fort Lewis PEB evaluated him for asthma and found him fit for duty. On the same date, he concurred with the PEB finding and recommendation and the finding and recommendation were approved. 7. On 18 November 2009, the Office of the Judge Advocate General Criminal Law Division completed the appellate examination of his general court-martial. His record of trial was determined to be legally sufficient and supported the findings. The findings and sentence were final and conclusive. 8. On 1 December 2009, he was advanced to the rank/grade of private first class/E-3. 9. On 1 June 2010, he was advanced to the rank of SPC. 10. The psychiatric narrative summary for his medical evaluation board (MEB), dated 16 September 2010, shows: a.  The evaluating psychiatrist verified the applicant and other Soldiers were deployed to Iraq from February 2004 to February 2005 and they were exposed to innumerable life-threatening events. b.  The applicant's synopsis of events leading to the MEB stated, in part: I deployed to Iraq 02/04-02/05 [4-5 February].…The change in climate and culture was a shock to me. I had a hard time sleeping and I was very anxious, as I am sure the other Soldiers were….Within my first week, my 5 ton and other 5 tons and humvees [sic] came into contact with the enemy [and] received direct and indirect mortar rounds. That made war a distinct reality for me….We also pulled security and returned fire. That was a wakeup call for me; I realized that I was really in a war….I was out of the wire at least 5 times a week….There were constant man to man battles outside of FOB [forward operating base] gates whenever the insurgents saw our vehicles coming or exiting their villages. It was an ordinary experience to pass by corpses of fellow Soldiers or/and Iraqi Army Soldiers….The stench of rotting bodies missed [mixed] with the smells of the burn pits and gun powder. During the first three months these used to make me nauseous and I vomited. But after a while I got used to these horrible scenes and became numb to everything. …I looked forward to being with my German girlfriend Shanice, and taking her home stateside for a 30 day vacation. I wanted her to meet my family and friends and show her New York. We enjoyed the vacation very much. Back in Germany, after reporting to my Unit, I visited her at her apartment and low [sic] and behold, I found her with another man, kissing him. We had an exchange of words while the man tried to run out. Shanice grabbed me from behind. Before I knew it, I was thrown back to Iraq and in combat. I do not remember what I did and had to be told later that I had hurt her and her boyfriend badly; I had fractured her jaw; I broke her boyfriend's nose. I became aware of this episode, which some fellow soldiers said must have been a dissociative episode, when I was already in military confinement. This incident resulted in a Court Martial and loss of rank and pay. My Jag [Judge Advocate General] Lawyer advised me to seek mental health services as soon as I got re-assigned to Fort Knox because he said that in his experience, what I did was symptomatic of PTSD. By that time an MEB was already started in Germany because of my Asthma. In May 2008 I came to Fort Knox KY and there was a lot of confusion about what to do about me. It was not until September 2009 that I was allowed to see a mental health provider. …I thought that my 30 day vacation with my girlfriend in New York would relieve me of my high stress level, and it did. Until we returned to Germany and I found her in her apartment kissing another soldier. Then the dissociative state and the court martial. I believe that what happened was a direct result of my Iraq Deployment. Thoughts and images of vehicles being directly hit and my buddies being killed, rotting corpses and the mixed smell of decaying flesh and burn pits, dead bodies and the smells of burnt human remains come to me and disturb me at work. c.  He was diagnosed with chronic PTSD with moderate symptoms and he was found to be mentally competent to understand and participate in board proceedings and competent for pay purposes. 11. On 20 September 2010, he signed an affidavit indicating his desire for retention on active duty beyond his scheduled date of expiration of term of service. On the same date, the Chief, Patient Administration Division, Headquarters, U.S. Army Medical Department Activity, recommended approval of his retention. 12. On 11 January 2011, the applicant requested a grade determination. 13. On 15 February 2011, the Army Grade Determination Review Board determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement or separation pay was the grade he held at the time of his disability separation or disability retirement. 14. Headquarters, U.S. Army Garrison Command, Fort Knox, Orders 059-0163, dated 28 February 2011, released him from assignment and duty because of physical disability effective 8 May 2011 in the rank of SPC and placed him on the TDRL effective 9 May 2011. 15. His DD Form 214 shows he retired by reason of temporary disability in the rank/grade of SPC/E-4 on 8 May 2011. 16. His DA Form 199, dated 21 October 2014, shows the PEB found him unfit and recommended his permanent disability retirement with a 70-percent total combined disability rating as follows: * 30-percent disability rating for PTSD * 30-percent disability rating for asthma, bronchial * 20-percent disability rating for degenerative arthritis of the spine * 10-percent disability rating for ankle, limited motion 17. On 6 November 2014, he concurred with the findings and recommendations the PEB. 18. U.S. Army Physical Disability Agency Orders D 324-17, dated 20 November 2014, removed him from the TDRL on 20 November 2014 and permanently retired him in the rank of SPC with a 70-percent disability rating. 19. On 1 December 2014, the findings and recommendations of the PEB were approved. 20. On 4 April 2016, the Chief, Behavioral Health Division, Office of the Surgeon General, provided an advisory opinion wherein she stated there was insufficient evidence to support a connection between the applicant's behavior and PTSD or any other psychiatric condition. She further stated: a. In early 2010, he sought behavioral health treatment and was seen no less than twice weekly by a social worker who diagnosed him with anxiety disorder (not otherwise specified). He met with a psychiatrist twice to request a PTSD diagnosis and was twice told that his "previously described symptoms do not support a PTSD diagnosis." b.  There was no mention of a PTSD diagnosis until 2010 when he requested the diagnosis from his treating psychiatrist who confirmed on two occasions that he did not meet the criteria for the disorder. c.  The extent of his court-martial charges suggest that the duration of the incident is inconsistent with a startle response, however exaggerated. 21. On 5 April 2016, a copy of the advisory opinion was provided to the applicant for his review and response. He did not respond by the suspense date. REFERENCES: 1. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board. The Army Grade Determination Review Board determines or recommends the highest grade satisfactorily held for service/ physical disability retirement, retired pay, and separation for physical disability. a.  Paragraph 2-4 states the Army Grade Determination Review Board will consider each case on its own merits. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to: medical reasons which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance; compassionate circumstances, or lengths of time in grade; performance level as reflected in evaluation reports and other portions of the service record that reflect performance; nature and severity of misconduct, if any; and the grade at which the misconduct was committed. b.  Paragraph 2-5 states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: (1)  the highest grade as the result of a terminal leave promotion; (2)  reversion to a lower grade was: * expressly for prejudice or cause * owning to misconduct * caused by nonjudicial punishment pursuant to the Uniform Code of Military Justice, under the provisions of Article 15 * the result of the sentence of a court-martial (3)  there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. c.  Paragraph 2-7 states all active duty or active Federal service may be considered as continuous, or each period of duty may be considered separately if it is to the Soldier's benefit, unless a specific interpretation is required by statute. "Satisfactory service" is defined as service absent of any negative personnel or Uniform Code of Military Justice action. The length of time of satisfactory service for enlisted Soldiers is not specified in law or regulation when there are no negative personnel or Uniform Code of Military Justice actions. d.  Paragraph 3-3 states an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the Army Grade Determination Review Board for a grade determination unless the Soldier is entitled to a higher or equal grade by operation of law (Title 10, USC, sections 1212 and 1372). 2. Title 10, USC, section 1204, defines retirement for members serving on active duty for 30 days or less or performing inactive duty training. Upon a determination by the Secretary concerned that a member of the Armed Forces not covered by sections 1201, 1202, or 1203 of this Title is unfit to perform duties of his office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title, if the Secretary also determines the disability is: a.  based upon accepted medical principles and is of a permanent nature and stable; b.  a result of an injury, illness, or disease incurred or aggravated the in line of duty; c.  not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and d.  at least 30-percent disabling under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. DISCUSSION: 1. The applicant's request for correction of his retired rank/grade to show SGT/E-5 instead of SPC/E-4 was carefully considered. 2. By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 3. Although he contends his PTSD led to his court-martial and reduction in rank, he was not diagnosed with PTSD until 2010, almost 2 years later after his court-martial. Further, his actions that led to his court-martial were beyond those of a startled individual as indicated in his Psychiatric Narrative Summary for his MEB. 4. There is no error or an injustice in the Army Grade Determination Board's process of determining the highest grade he satisfactorily held. His dissatisfaction with the outcome of the Army Grade Determination Board does not invalidate it and is not a reason to set aside its findings and retire him in the rank of SGT. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140020173 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140020173 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2