IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150001339 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: 30 June 2016 DOCKET NUMBER: AR20150001339 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: 30 June 2016 DOCKET NUMBER: AR20150001339 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 his records to set aside the non-judicial punishment (NJP) he received under Article 15, Uniform Code of Military Justice (UCMJ), and reinstatement of his rank without payment of back pay or allowances. 2. He states that he was not aware that he was suffering from a mental health condition. He was recently diagnosed with a medical condition due to his military service. This medical condition causes him to have episodes of intense anger, with violent outburst. A violent outburst was the main cause of the Article 15 that resulted in his reduction in rank to specialist (SPC/E-4). He was honorably discharged less than 6 months after his reduction in rank. 3. He provides: * VA Medical Center (VAMC) Progress Reports * two Military Police (MP) Reports with witness statements * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Treatment Summary, dated 7 September 2013 * VA Form 21-0960P-3 (Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire), dated 8 October 2014 * Department of Veterans Affairs (VA) letter, dated 25 August 2014 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. The applicant enlisted in the Regular Army on 15 October 1985 and served as a medical specialist. The highest rank/grade he held was SGT/E-5. 3. He was assigned to the 3rd Battalion, 14th Infantry, Fort Drum, NY, on 8 November 1990. His duties included Vehicle Driver, Emergency Treatment Noncommissioned Officer (NCO), and Aid/Evacuation NCO. While assigned to this organization he completed two deployments as follows: * Somalia: 22 December 1992 to 11 March 1993 * Haiti: 24 September 1994 to 12 November 1994 4. He accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice on 8 June 1995 for assaulting his spouse by striking her in the head with a closed fist. The punishment imposed was reduction to pay grade E-4. His subsequent appeal was denied. 5. On 14 August 1995, his commander requested the applicant be separated under the Retention Control Program (RCP) stating the applicant would reach his retention control point on 9 March 1996 and he would not be able to overcome the RCP constraints placed upon him. 6. The appropriate authority approved this request and he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) chapter 16-8, Reduction in Force, on 1 September 1995. 7. His service medical records are not available for review. 8. The applicant provides: a. An MP Report, dated 31 January 1995, with allied witness statements. The report indicates the applicant was involved in a verbal altercation with his spouse on 27 January 1995. The applicant’s spouse offered in her sworn statement that the applicant lifted a blanket from underneath her causing her to fall and grabbed her in a harsh manner. He also threatened to throw her out the window. He prevented her from using the phone and continued to verbally insult her until finally he left. She also indicated they were in family counseling. b. An MP Report, dated 20 May 1995, with allied witness statements. The report states the applicant and his spouse were involved in a verbal altercation on 19 May 1995 which became physical when the applicant slapped his spouse with an open hand across her face and punched her with a closed fist on the left side of her face. The applicant’s spouse was 5 months pregnant at the time of the assault and transported to the hospital where she was treated and released. The applicant was advised of his rights and released to his unit. The spouse stated the applicant hit her in the head, face, arms, and around her stomach. c. A Clinical Psychologist Treatment Summary stating the applicant had been in treatment since September 2010. After taking a thorough history from the applicant, the psychologist determined the applicant had been exposed to numerous traumatic events during his military service in Somalia. These events comprised a direct life threat (being shot at), exposure to gruesome events (including watching human bodies being eaten by dogs and treating civilian who had been scalped), and an incident in which he almost killed a young civilian child. Subsequently he developed anxiety, avoidance, flashbacks, irritability, and physiological hyperarousal, meeting the criteria for PTSD. He has made progress but continues to experience impairments which include lower frustration tolerance, leading to social withdrawal from family and co-workers, diminished attention at work, and physiological reactivity and emotional distress when triggered by reminders of the traumas he has experienced. d. A letter from the Northport VAMC, Inpatient Psychiatrist, dated 25 August 2014, stating the applicant was hospitalized from 16 August 2014 to present for treatment of a medical condition. 9. In connection with the processing of this case, an advisory opinion was received from the Board’s clinical psychologist. A review of the available medical records found there was insufficient documentation to reasonably conclude the applicant met the diagnostic threshold for PTSD or other behavioral health condition requiring a medical review board during his time in military service. This does not preclude that the applicant may have developed PTSD following his military service. The data available supports he was diagnosed and began treatment for PTSD and Major Depressive Disorder approximately 15 years following his military discharge. 10. The applicant’s Veterans' Service Officer, on behalf of the applicant who is under constant treatment, responded to the advisory opinion on 18 May 2015. He notes: * the applicant had domestic problems with his first spouse upon his return from Somalia and despite counseling that marriage ended in divorce * prior to his second marriage he experienced several symptoms of mental health conditions but he was unaware and did not seek help * he married his current spouse on 14 September 1994 and he was deployed to Haiti 10 days later * the first incident of alleged assault occurred while the couple was in marriage counseling which was less than 30 days post deployment and again his symptoms went undiagnosed * the applicant had several other incidents with his command and peers that are not documented * the second incident of alleged assault resulted in the applicant’s reduction to SPC/E-4 * the second marriage ended in divorce in November 1996; they later remarried in August 1999 * in July 2014 the applicant was visited by a former battle buddy which triggered memories from his deployments * it appears he suffered with mental health issues while on active duty and post discharge, but the signs were missed and he was never advised to seek treatment REFERENCES: 1. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 2. Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability. 3. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability. 4. Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing the DD Form 214. Paragraph 2-4h(4) states, in effect, that the active duty grade of rank and pay grade at the time of separation will be entered in Item 4a and 4b on the DD Form 214. 5. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. Chapter 3 implements and amplifies Article 15 of the UCMJ and chapter XXVI of the Manual for Courts-Martial. Paragraph 3-20 describes setting side of punishment and restoration of rights, privileges, or property. This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. a. NJP 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. b. "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's records show his acceptance of NJP under the provisions of Article 15 of the UCMJ, on 8 June 1995, for physical assaulting his pregnant wife, resulted in his demotion to SPC/E-4. He now contends that his undiagnosed and untreated PTSD caused his violent behavior. 2. His service medical records were not available for review and his personnel record is void of evidence showing he was diagnosed with or treated for a mental health or medical condition during his period of active service. VAMC documents show a psychiatric diagnosis of PTSD and major depression disorder on or about 2010. Unfortunately, the evidence provided is insufficient to show he suffered from PTSD prior to discharge. 3. The applicant’s recent mental health diagnoses are not in question; however, the mere presence of a mental health disorder does not, of itself, negate misconduct. 4. It is reasonable to conclude the officer imposing the applicant's NJP in exercised discretion in the NJP process based on the applicant's offense and considered all mitigating factors, to include any then-apparent mental health conditions as well as any factors that were raised concerning the applicant's guilt, the severity of the offense, and prior faithful service. It is also presumed the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt and deemed the appropriate punishment to be reduction in rank to SPC/E-4. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150001339 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001339 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2