BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100025633 


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, to be retired at the highest rank/grade he held, specialist (SPC)/E-4, instead of private (PV1)/E-1 as shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he was punished and demoted due to performance difficulties caused by injuries and side effects of medications he was taking since suffering severe trauma while on active duty.  All demotions happened while in the Warrior Transition Unit.  He never received an Article 15 while assigned to other units and he never failed a urinalysis test.

3.  The applicant provides the following:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Two DA Forms 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice))
* Assignment orders
* A partial copy of his Enlisted Record Brief (ERB)
* Standard Form 180 (Request Pertaining to Military Records)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 11 July 2006, in the rank/grade of PV1/E-1.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 19D (Calvary Scout).  His records show that on 21 December 2006 he was assigned to the 3rd Armored Cavalry Regiment (ACR), Fort Hood, TX. 

2.  His medical records are not available for review with this case.  However, his records show that on 9 May 2007 he was critically injured in a training accident at Fort Hood, TX, while assigned to the 2nd Squadron, 3rd ACR.  His injuries included multiple pelvic fractures.  

3.  On 18 October 2007, he was reassigned to the Warrior Transition Brigade, Fort Hood, TX.  His ERB shows the following entries for his dates of rank/grade:

* SPC/E-4 - 11 July 2008
* Private first class (PFC)/E-3 - 8 September 2008
* Private (PV2)/E-2 - 21 January 2009
* PV1/E-1 - 7 April 2009

4.  His record is void of the specific circumstances surrounding the reductions in rank/grade.  His record does contain a Department of the Army (DA) memorandum, Charlie Company, 2nd Battalion, Warrior Transition Brigade, dated 13 May 2009, signed by CPT C******, Commanding, wherein it states he (the applicant) was disapproved for the award of the Army Good Conduct Medal for the period 10 July 2006 to 10 July 2009, "due to misconduct, Article 15, during the qualifying period."

5.  On 26 January 2010, a PEB was conducted and determined he should be placed on the Temporary Disability Retired List (TDRL) with a combined disability rating of 60 percent.  His rank shows as PV1.  On 3 February 2010, he signed a DA Form 199 indicating he concurred with the PEB findings. 

6.  On 24 April 2010, he was retired by reason of disability, temporary.  On 25 April 2010, he was placed on the TDRL in the rank of PV1 with a rating of 60 percent.  

7.  The DD Form 214 he was issued confirms he was retired in the rank of PV1 and completed 3 years, 9 months, and 14 days of creditable active service.

8.  The applicant provides a DA Form 2627, dated 8 September 2008, wherein he accepted nonjudicial punishment (NJP) under Article 15, UCMJ for disrespect to a noncommissioned officer (NCO) and he was reduced from SPC/E-4 to PFC/
E-3.

9.  He also provides a DA From 2627, dated 7 April 2009, wherein he was again punished under Article 15, UCMJ for disrespect to an NCO and was reduced from PV2/E-2 to PV1/E1.

10.  Title 10, U.S. Code, section 1372 (Grade on retirement for physical disability: members of armed forces) states, unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

	a.  The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.

	b.  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

	c.  The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

	d.  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was punished and demoted due to side effects of medications he was taking.  However, his medical records are not available for review with this case and he has not provided any evidence to support this contention.  There is insufficient evidence to support his contention that the medications caused his misconduct and ultimate NJP.

2.  Prior to his retirement, he received NJP that resulted in his reduction to PV1/E-1.  He held that rank/grade at the time he was placed on the TDRL.  His reduction was a result of misconduct.  In order to retire at the higher grade, the member must satisfactorily serve in that grade.  The UCMJ action and corresponding reduction clearly indicate he did not satisfactorily serve in the rank/grade of SPC/E-4.  Therefore, he could not be placed on the TDRL in the highest grade he held.  
3.  In view of the foregoing, the applicant is not entitled to the requested relief.

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)                                         AR20100025633



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ABCMR Record of Proceedings (cont)                                         AR20100025633



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