ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20160017890


APPLICANT REQUESTS:  In effect, to have his rank restored from specialist 4 (SP4) /E-4 to sergeant (SGT)/E-5.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Rating Decision codes
* Rating Decision, dated 28 Nov 14
* Blank Sheet of paper that was supposed to be a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was demoted to the rank of SP4 due to an infraction of absent without leave (AWOL) for one day.  He believes the demotion to SP4 from sergeant was unwarranted and should not have occurred.  He was AWOL one day shortly after his return from Vietnam.  He returned on his own accord not forced or by law enforcement.  He knows now his actions on that day were a consequence of his post-traumatic stress disorder (PTSD) (of which he is service connected through Department of Veteran Affairs).  Not until after the event did he realize his actions were directly related to his PTSD incurred during his tour in Vietnam.  He kindly requests the demotion to SP4 be dismissed.  He will waive any monetary difference during his active duty.  He only wishes to have his DD Form 214 reflect the rank he earned and should have maintained due to honorable service to his country.


3.  The applicant provides:

* Rating Decision codes of his claims including PTSD
* Rating Decision, dated 28 November 2014, explaining the decision, evidence, and reasons for decision
* Sheet of paper that was supposed to be a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) no image was fully photocopied, based on supporting documents applicant stated was submitted in support of this application

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 24 April 1967.

	b.  Special Orders (SO) 301, dated 27 October 1968 shows he was promoted to SGT on 7 October 1968.

	c.  He accepted non-judicial punishment under Article 15 on/for:

* 17 March 1969, without authority, absent himself from his unit from 3-5 March 1969; he was reduced to corporal/E-4 (suspended until 8 May 1969)
* 27 March 1969, derelict in the performance of his duties in that he negligently failed to secure his equipment log book
* 24 July 1969, without authority, absent himself from his place of duty on 12 and 16 July 1969; he was reduced to SP4/E-4

	d.  SO 210, dated 29 July 1969, shows he was reduced to SP4 (permanent) on 19 July 1969 for misconduct punished under Article 15.

	e.  On 24 April 1970, he was honorably transferred to Unites States Army Reserve for expiration of term of service in the rank of SP4.  He completed 2 years, 11 months, and 29 days with 1 year, 2 months, and 23 days being served in the Republic of Vietnam.  He had 2 days of lost time.  He was awarded the National Defense Service Medal, Vietnam Service Medal, (2) Overseas Bars, Combat Infantryman Badge, Vietnam Campaign Medal with 60 device, Army Commendation Medal, Expert Qualification Badge (M-14 and 81MM) and the Sharpshooter Qualification Badge 
(M-16).


5.  On 15 April 2019, the ARBA Medical Advisor rendered an advisory opinion in the applicant’s case.  The advisor stated:

	a.  The applicant’s Physical and Mental Status on Release from Active Service on 25 April 1970 indicated that his profile was 1 1 1 1 1 1 A.  AHLTA (Armed Forces Health Longitudinal Technology Application) records were not accessed as his time in the U.S. Army was prior to AHLTA being established.

	b.  Veteran's Affairs documents provided by the applicant indicated that he was diagnosed with service connected "PTSD with Major Depressive Disorder" (indicates that this occurred as a result of combat during Vietnam); diabetes mellitus; peripheral neuropathy, left upper extremity; peripheral neuropathy, right upper extremity; peripheral neuropathy, sciatic nerve, right lower extremity; peripheral neuropathy, sciatic nerve, left lower extremity; tinnitus; hemorrhoids; bilateral hearing loss; and erectile dysfunction associated with diabetes mellitus.  The applicant was found to have a not service related eye condition of sensitivity to light; hypertension; irritable colon syndrome; burn scars; and ingrown toe nails of the left foot.

	c.  The applicant’s VA records were viewed via The Joint Legacy Viewer.  The Veteran Affairs provided the applicant with a total of 90% service related disability. PTSD was initially diagnosed on 15 June 2009.  He was diagnosed with major depressive disorder on 12 February 2017.

	d.  Supplemental guidance is central to this case.  The applicant’s 2 days of AWOL are consistent with avoidance symptoms of PTSD.  His being late on two separate mornings is also consistent with avoidant symptoms of PTSD.  Lastly, his forgetting to secure his equipment log book is consistent with negative cognitions (e.g. forgetting typical tasks) and mood symptoms of PTSD.

	e.  This clinical/forensic psychologist opines that the applicant's misconduct is mitigated by symptoms of PTSD.

6.  On 22 April 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a response and/or a rebuttal.  He did not respond as of 16 May 2019.

7.  By regulation, AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement.

	a.  AR 635-40, establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.

	b.  AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  Paragraph 3-8e addresses reduction in grade:  promotion authority, the grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction.

* His Article 15, dated 17 March 1969 (AWOL) resulted in a suspended reduction to corporal/E-4 (suspended until 8 May 1969)
* His Article 15, dated 24 July 1969 (AWOL) resulted in a reduction to SP4/E-4

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant’s contentions and the medical advisory were carefully considered.  The applicant’s record is void of evidence showing he had symptoms of PTSD during his period of service that ended 24 April 1970.  However, he was diagnosed with PTSD by the VA in 2009.  Based upon the preponderance of evidence, the Board determined there were no mitigating factors to his misconduct in which he was reduced in rank by NJP.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.



ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (NJP) under the Uniform Code of Military Justice.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	a.  Paragraph 3-8e.  Reduction in grade.  Promotion authority. The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction. For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15(b), if he has the general authority to appoint to the grade from which reduced or any higher grade.

	b.  Paragraph 3-17 suspensions.  Ordinarily, the purpose of suspending punishment will be to grant to a deserving member a probational period during which he may show that he is deserving of remission of the suspended portion of his non-judicial punishment.  If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed.  Action vacating a suspension will be recorded in accordance with notes 10 and 11, Part III, DA Form 2627 (Record of Proceedings).  Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action.

	c.  Paragraph 3-20 describes setting aside and restorations.  This 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.
	d.  Paragraph 3-21 limitations with respect to reduction in grade.  An unsuspended reduction in grade, imposed as NJP, becomes fully executed at the time it is imposed.  Accordingly, there can be no remission of an unsuspended reduction.

	e.  Paragraph 3-22 who may act on an appeal.  An appeal under Article 15 will be acted upon by the authority next superior to the officer who imposed the punishment if the person punished is still of the command of that officer at the time he appeals, but if the punishment has been imposed under a delegation of the superior's power to impose NJP (see para 128, MCM, 1969) the appeal will be acted upon by the authority next superior to him.

3.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement.

4.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service.

5.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to:  mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment.  Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences.  The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160017890


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