IN THE CASE OF:
BOARD DATE: 24 March 2011
DOCKET NUMBER: AR20100017806
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 that he be retired in the highest rank/grade he held on active duty which was staff sergeant/E-6.
2. The applicant states he was reduced to the rank of specialist/E-4 by a court-martial for larceny that he committed in part due to his mental condition. He was given a profile that precluded him from handling a weapon; therefore, he was unable continue his weapons qualifications and he could not regain his rank. These factors combined with other problems aggravated his depression. Others who were reduced were allowed to retire in their higher grade held.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a Disability Grade Determination Board decisional document, dated 27 October 2009; and his Enlisted Record Brief.
CONSIDERATION OF EVIDENCE:
1. The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.
2. The applicant served on active duty from 26 November 1991 through 15 March 2010.
3. On 1 November 1998, he was promoted to staff sergeant in military occupational specialty 36B (Financial Management).
4. On 3 November 2008, at a special court-martial the applicant pled guilty and he was convicted of two counts of larceny by sealing $2,365.18 and $2,623.95 of U.S. Government funds. His sentence was a forfeiture of $1,423.00 pay for
1 month, reduction to pay grade E-4, and confinement for 30 Days.
5. On 15 December 2008, the court-martial approval authority approved the findings and sentence and directed the sentence be executed.
6. On 10 October 2009, a Physical Evaluation Board determined the applicant was unfit for continued active service due to a major depressive disorder, rated 50 percent disabling.
7. On 27 October 2009, a Disability Grade Determination Board determined the highest rank/grade the applicant satisfactorily held for disability retirement purposes was specialist/E-4.
8. The applicant was permanently retired due to physical disability on 15 March 2010 in pay grade E-4. He had completed 18 years, 2 months, and 26 days of creditable active service.
9. Army Regulation 15-185 (Army Grade Determination Review Board and Grade Determinations) states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory under a number of circumstances including when reversion to a lower grade was the result of the sentence of a court-martial.
10. Army Regulation 15185 (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 Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that 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 AND CONCLUSIONS:
1. The applicant was properly reduced to pay grade E-4 due to a court-martial conviction and he was serving in this pay grade at the time the Grade Determination Board rendered that this was his appropriate retirement grade.
2. The applicant has provided no mitigating evidence sufficient to grant his request.
3. The applicant has failed to submit and the record does not contain any evidence that his record is in error or unjust.
BOARD VOTE:
________ ________ ________ 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 that 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.
ABCMR Record of Proceedings (cont) AR20100017806
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ABCMR Record of Proceedings (cont) AR20100017806
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