RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:  12 April 2007	  
	DOCKET NUMBER:  AR20060011644 


	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.



	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 her rank and pay grade on the Retired List be changed to Sergeant/E-5.  

2.  The applicant states, in effect, her rank and pay grade should be Sergeant/
E-5 and not the rank and pay grade of Specialist/E-4.  She also states that she was separated from the Temporary Disability Retired List (TDRL) with severance pay.

3.  The applicant provides copies of her promotion orders; her DA Form 2627 (Record of Proceedings Under Article 15, UCMJ); her reduction orders; her active duty release orders; her DD Form 214 (Certificate of Release or Discharge from Active Duty); and a letter from the Chief, Operations Division, US Army Physical Disability Agency (PDA), Walter Reed Army Medical Center, Washington, DC, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she enlisted in the United States Army Reserve, in pay grade E-4, effective 9 November 1994, for 3 years, with prior enlisted service.

2.  The applicant was ordered to active duty for training and entered on active duty effective 25 February 2001.

3.  The applicant was issued Orders Number 177-9, dated 26 June 2001, promoting her to Sergeant/E-5 effective 1 July 2001.

4.  On 5 February 2002, she was punished under Article 15, Uniform Code of Military Justice (UCMJ), for multiple violations of the UCMJ, including behaving with disrespect toward her superior commissioned officer by interrupting continually, screaming, yelling, and jumping from her seat and shouting.  Her punishment included reduction to the rank and pay grade Specialist/E-4.  The applicant elected not to appeal the punishment imposed.

5.  The applicant was issued Orders Number 37-1, dated 6 February 2002, reducing her from Sergeant/E-5 to Specialist/E-4 effective 5 February 2002, under the provisions of Army Regulation 140-158, paragraph 7-9a.

6.  On 25 February 2002, the applicant appeared before a Medical Evaluation Board (MEB).  The MEB found the applicant had the following medical condition: 

Schizopreniform disorder with good prognostic indicator.  The MEB ruled out schizophrenia, manifested by complex bizarre delusions, persecution, and grandiosity as well as concrete thinking.  The MEB determined the condition to be in the line of duty and the condition impaired the applicant for further military duty under the provisions of Army Regulation 40-501, paragraph 3-31.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).  The applicant concurred with the findings and recommendation of the MEB on 28 February 2002.

7.  On 14 March 2002, a PEB convened and considered the applicant's condition of schizophreniform disorder.  The PEB described the applicant's disability as being onset by symptoms on about 1 October 2001, with gradual deterioration of duty performance and development of an involved delusional system.  The PEB found the applicant's medical and physical impairment prevented reasonable performance of duties required by her grade and military specialty.  The PEB granted a disability level of 30 percent or more, but as such that a permanent evaluation was not yet possible, and placed the applicant on the TDRL.  On 19 March 2002, the applicant concurred with the findings and recommendation of the PEB.

8.  The applicant was issued Orders Number C-05-290825, dated 22 May 2002, releasing her from assignment and duty because of physical disability and placement on the TDRL, in the permanent rank and pay grade of Specialist/E-4, effective 22 July 2002, with 30 percent disability.  Her disability retirement was based on 9 years, 9 months, and 19 days, under the authority of Title 10, United States Code 1202.

9.  The applicant was discharged from active duty, in the rank and pay grade of Specialist/E-4, effective 22 July 2002, under the provisions of Army Regulation 635-40, paragraph 4-24B(2), for temporary disability.  She was credited with 1 year, 4 months, and 28 days net active service during the period of this active duty and 8 years and 1 day total prior active service.  She was transferred to the Retired Reserve.  

10.  On 25 July 2003, the PEB, based on a review of the TDRL examination, found that the applicant's impairment had not sufficiently stabilized to permit final adjudication at that time.  The applicant was retained on the TDRL for an additional period with reexamination during January 2005. 

11.  On 30 May 2006, a second PEB convened and considered the applicant's condition of schizophreniform disorder.  The PEB determined that the applicant's 
condition had not improved to the extent that she was fit for duty.  The PEB found the applicant physically unfit and recommended a combined rating of 10 percent and separation with severance pay, if otherwise qualified.  On 6 June 2003, the applicant did not concurred with the findings and recommendations of the PEB, requested a formal hearing without personal appearance, with representation by counsel.

12.  On 12 July 2006, the applicant's counsel appeared before a PEB.  The applicant participated by telephone.  The PEB reevaluated the applicant's schizoaffective disorder and determined that her condition had not improved to the extent that she was fit for duty.  The PEB recommended a combined rating of 10 percent and separation with severance pay, if otherwise qualified.  

13.  On 20 July 2006, applicant received counseling reference the PEB formal findings dated 12 July 2006.  At that time the applicant acknowledged she understood the finding of 10 percent and separation with severance pay and concurred on the same day.

14.  In a letter, dated 31 July 2006, the Chief, Operations Division, US Army PDA, Walter Reed Army Medical Center, advised the applicant that a review of her case revealed she once held the rank of Sergeant and she was reduced to Specialist on 5 February 2002, due to action under the UCMJ.  Her case did not contain any information that she requested a grade determination prior to her placement on the TDRL.  It appeared that she was not properly counseled about the provisions of applying for a grade determination.  He recommended that the applicant apply to the Army Board for Correction of Military Record (ABCMR) and request retroactive retired pay based on the rank of Sergeant.  She was also advised that the Board is authorized to correct the military records of former Soldiers who believed an error or injustice occurred.  The Board would issue instructions, if the request was favorably considered.   

15.  The Defense Finance and Accounting Service, Retired Pay Branch, verified that the applicant's retired rank and pay grade as Specialist/ E-4.

16.  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 1-14 specifies that separation authorities will 
accomplish automatic grade determinations at the time of the Soldier's separation.  Paragraph 2-4 specifies that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay.  Generally, determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.  Circumstances pertinent to whether such service is found satisfactory include medical reasons, which may have been a contributing factor or decisive factor in a reduction in grade, misconduct, or substandard performance.  

17.  Army Regulation 15-180, 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 non-judicial punishment, or the result of the sentence of a court-martial.   

18.  Army Regulation 140-158, Section III, Reduction, prescribes the policies and procedures for reduction of enlisted Reserve Soldiers.  Paragraph 7-9a of this section provides for reduction for misconduct or conviction by civil court.  Section V, Restoration of Pay Grades, provides for restoration to former grades for the following reasons:  setting aside, mitigation, or suspension of non-judicial punishment.  

19.  Title 10, United States Code, section 1372, 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 or whose names in placed on the TDRL, is entitled to a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the Retired List, or the TDRL, the highest grade in which he served satisfactorily; the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant had been promoted to the rank and pay grade of Sergeant/E-5 on 1 July 2001.  In February 2002, she was punished under the UCMJ and reduced to Specialist/E-4, for misconduct, prior to being processed for retirement by reason of physical disability.  



2.  It appears from the applicant's MEB and PEB records that her UCMJ punishment was directly related to her medical condition.  Nonetheless, during the physical evaluation board process, she was entitled to a grade determination prior to a decision to place her on the TDRL.  The evidence shows she was not provided this benefit and was therefore placed on the TDRL in pay grade E-4 without her having full benefit of all her rights.  

3.  The record is void of any indication pertinent to her being counseled about a formal grade determination being made during her physical disability separation processing, which is required by law and regulation in order to determine the proper retirement grade.  The PDA advised the applicant that her records did not show she received proper counseling concerning a grade determination prior to her placement on the TDRL and to apply to the ABCMR for relief.  

4.  The applicant's records do not show any other derogatory information or other punishment(s) under the UCMJ during her service.  Based on the onset of her medical condition and the reason for her Article 15, it is clear her medical condition may have been a contributing factor for her misconduct which resulted in a reduction in grade.  Based on her overall service in pay grade E-5 from July 2001 to February 2002, it can be considered she served satisfactorily in that grade.  There is no evidence in her records that shows the applicant does not merit restoration to her former rank and pay grade of E-5 prior to her placement on the TDRL.

5.  In view of the facts of this case and as a matter of equity, it is concluded the applicant should have been placed on the Retired List in the rank and pay grade of Sergeant/E-5.  Therefore, it would be appropriate to correct her record to show her retired rank and pay grade as sergeant/E-5 and by providing her any back retired pay due as a result.  

BOARD VOTE:

__EM____  ___CLG_  ___MJF_  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 showing the individual was placed on the Temporary Disability Retired List in the rank and pay grade of sergeant/E-5 on 22 July 2002 and by providing her any back pay and allowances due based on this correction to her retired rank and pay grade. 




____Curtis L. Greenway _____
          CHAIRPERSON




INDEX

CASE ID
AR20060011644
SUFFIX

RECON

DATE BOARDED
20070412
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20020722
DISCHARGE AUTHORITY
AR635-40, para $-24B(2)
DISCHARGE REASON
Disability, Temporary
BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
129.04
2.

3.

4.

5.

6.