RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 September 2004
      DOCKET NUMBER:   AR2004106109


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Linda D. Simmons              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his rank of sergeant/E-5 (SGT/E-
5) be restored and that he be provided additional disability severance pay
based on this restored rank and pay grade.

2.  The applicant states, in effect, according to governing regulations and
policy, the highest rank satisfactorily and permanently held should be the
rank of record when a member is separated by reason of physical disability.
 He claims that he held and satisfactorily served in the rank and pay grade
of SGT/E-5 for over five years out of his over 8 year Army career.  He
states his reduction in rank was effective on 27 November 2002, just over
two months prior to his separation, while he was undergoing processing
through the Army Physical Disability Evaluation System (PDES).

3.  The applicant provides SGT/E-5 promotion orders, a Trial Defense
Counsel (TDC) Letter, and Noncommissioned Officer Evaluation Reports
(NCOERs) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he entered active duty on 4 December 1994
and was promoted to the rank and pay grade of SGT/E-5 on 2 July 1997.  It
further shows that he earned the following awards during his active duty
tenure: Army Commendation Medal, Army Achievement Medal, National Defense
Service Medal (2ndAward), Noncommissioned Officer Professional Development
Ribbon, Army Service Ribbon, Army Good Conduct Medal, Overseas Service
Ribbon, Expert Qualification Badge with Pistol Bar, Gold German Armed
Forces Efficiency Badge, and Bronze German Army Marksmanship Badge.

2.  On 25 November 2002, the applicant’s TDC prepared a memorandum in
regard to Article 15 proceedings pending against the applicant.  She
claimed the investigation conducted in the case lacked sufficient evidence
to support the charge against the applicant.  She further requested the
command withdraw their allegations against the applicant.

3.  On 25 November 2002, the applicant elected not to demand a trial by
court-martial and to have his cased considered by his commander in a closed
hearing.
4.  On 27 November 2002, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for violating a lawful general regulation by wrongfully
engaging in an inappropriate relationship with a female private, a
subordinate soldier who was assigned to his platoon.  His punishment for
this offense included a reduction to specialist/E-4 (SPC/E-4).  The
applicant elected not to appeal the punishment imposed.

5.  Orders Number 357-008, dated 23 December 2003, published by
Headquarters, I Corps and Fort Lewis, Military Personnel Division, Fort
Lewis, Washington, directed the applicant’s discharge on 17 February 2003,
under the provisions of Army Regulation 635-40, by reason of physical
disability with severance pay.  The additional instructions in these orders
stipulated that the applicant was authorized disability severance pay in
the rank and pay grade of SPC/E-4 based on 8 years, 4 months, and 14 days
of service as computed under section 1208, Title 10 of the United States
Code.

6.  On 17 February 2003, the applicant was honorably discharged.  The
separation document (DD Form 214) he was issued on that date shows he held
the rank and pay grade of SPC/E-4, he completed a total of 8 years, 4
months, and 14 days of active military service and he was separated under
the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of
disability, severance pay.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army PDES and sets forth the 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. If further provides
for the disposition of soldiers according to applicable laws and
regulation.  Paragraph 4-24b(3) provides for the separation of soldiers for
physical disability with severance pay.

8.  Title 10 of the United States Code, section 1212 provides the legal
authority for the grade to be awarded to members retiring for physical
disability.  It states, in pertinent part, that at the time any member of
an armed force who is retired for physical disability is entitled to a
grade equivalent to the highest of the following: the grade in which he is
serving on the date he was separated for disability; the highest grade in
which he served satisfactorily as determined by the Secretary of the Army;
or the grade to which he would have been promoted had it not been for the
physical disability that resulted in his separation.

9.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade
Determinations) establishes policies, procedures, and responsibilities of
the Army Grade Determination Review Board (AGDRB) and other organizations
delegated authority to make grade determinations on behalf of the Secretary
of the Army (SA).  Paragraph 2-5 outlines circumstances that normally
result in an unsatisfactory service determination on behalf of the SA.
These circumstances include when a reversion to a lower grade was expressly
for prejudice or cause, owing to misconduct, caused by NJP pursuant to
UCMJ, Article 15, or the result of the sentence of a court-martial.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the existing policy and regulations dictate
he should have received disability severance pay based on the rank and pay
grade of SGT/E-5, which is the highest rank he held and in which he
satisfactorily served was carefully considered.  The supporting
documentation provided by the applicant was also evaluated.  However, there
is insufficient evidence to support the requested relief.

2.  The evidence of record confirms the applicant was reduced from SGT/E-5
to SPC/E-4 as a result NJP he accepted on 27 November 2002.  In spite of
the assertions by the applicant’s TDC, the applicant elected not to demand
a trial by court-martial and to have his case considered by his commander
at a closed hearing.  Further, subsequent to the imposition of the NJP,
which included the reduction, the applicant elected not to appeal the
punishment imposed.  Thus, there appears to have been no error or injustice
related to the imposition of the applicant’s NJP, including his reduction
to SP4/E-4.

3.  By regulation, service in a higher grade is not normally considered
satisfactory when reversion to a lower grade was pursuant to NJP imposed
under the provisions of Article 15 of the UCMJ.  In this case, the evidence
of record clearly shows the applicant’s reduction was the result of his
acceptance of NJP.  Thus, his service in the rank and pay grade of SGT/E-5
was not considered satisfactory and he appropriately received disability
severance pay as a SPC/E-4.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV ___  __JEA___  __LDS __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ___  JAMES E. VICK______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106109                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/02/17                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability, severance pay               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |106.0010                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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