IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100029890 


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 reconsideration of his earlier request for correction of his records to show his rank/grade at the time of his discharge from the U.S. Army Reserve (USAR) as sergeant (SGT)/E-5.

2.  The applicant states, in effect:

* He was diagnosed with post-traumatic stress disorder (PTSD) in November 2010 by doctors at the Department of Veterans Affairs (VA) and he receives a 10% service-connected disability compensation from the VA 
* He is currently on medication and he underwent surgery and is expected to have two more
* He served three tours in combat and he was exposed to multiple explosions, improvised explosive devices, and various other weapon systems
* He was a member of the 69th Infantry Regiment, New York Army National Guard (NYARNG) during the 11 September 2001 events and participated in Operation Noble Eagle as well as Operation Iraqi Freedom
* He now lives with flashbacks, nightmares, sleep disruption, intrusive thoughts, and other ailments
* He was treated with disrespect by members of his unit and he experienced racism because of his ethnicity as well as jealousy because of his knowledge
* His chain of command displayed a lack of concern for Soldiers and did not take care of him or other Soldiers
* He was honorably discharged from the USAR on 19 November 2008; he decided to separate due to a personal conflict with continued service
* He previously asked his chain of command to fix his retirement points to no avail; he was, in effect, given the run around
* He requested a closed hearing during the Article 15 proceedings because he did not want to compromise the unit for the lack of integrity in front of others and this was his mistake
* He should not have to pay for his integrity
* He lives every day with pain and sadness

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090019663 on 27 May 2010.

2.  The applicant did not provide any new evidence; however, he provides a new argument which was not previously reviewed by the Board.  Therefore, it is considered as new evidence and warrants consideration by the Board. 

3.  Having had prior service in the NYARNG, the applicant's records show he enlisted in the NYARNG on 21 March 1988 and held military occupational specialty 11B (Infantryman).  He executed multiple extensions or reenlistments in the ARNG and attained the rank/grade of SGT/E-5 on 1 October 2001. 

4.  He was honorably released from the ARNG on 7 November 2002 and he was transferred to the USAR on 8 November 2002.  

5.  He served on active duty from 3 February 2003 to 15 January 2004 and 27 July 2004 to 7 July 2006.  During these two periods, he served in Kuwait, from 7 September 2004 to 18 September 2004 and Iraq, from 19 September 2004 to 10 May 2006.  He held the rank/grade of SGT/E-5 at the time.

6.  On 2 October 2004, he was reprimanded by the Commanding General, 353rd Civil Affairs Command, for driving a vehicle while under the influence of alcohol.

7.  On 18 November 2007, at a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* failing to go at the time prescribed to his appointed place of duty
* disrespecting a commissioned officer by using profanity and threatening to shoot him
* willfully disobeying a lawful order to stop swearing and calm down during a unit Army Physical Fitness Test

His punishment consisted of a reduction to specialist (SPC)/E-4 and a forfeiture of $500.00 pay.  He elected not to appeal his punishment. 

8.  On 7 December 2007, he received a "Relief for Cause" Noncommissioned Officer Evaluation Report that covered the period 1 July 2007 through 7 December 2007.  The rater indicated "Soldier was reduced during this period." 

9.  On 12 December 2008, Headquarters, 411th Civil Affairs Battalion, Danbury, CT, published Order Number 343-01 reducing him from SGT/E-5 to private first class (PFC)/E-3 effective 8 December 2008 by reason of Article 15, UCMJ.  The facts and circumstances of this Article 15 are not available for review with this case.

10.  On 18 November 2008, Headquarters, Civil Affairs and Psychological Operations Command, Fort Bragg, NC, published Orders 08-323-00010 ordering his honorable discharge from the USAR in the rank/grade of SPC/E-4 effective 19 November 2008.  These orders may have been revoked at some point.

11.  On 4 March 2010, by memorandum, the U.S. Army Human Resources Command, St. Louis, MO, notified the applicant of his eligibility for retired pay at age 60 (20-Year Letter).  This document shows the applicant's rank as "SPC."

12.  On 6 March 2010, Headquarters, Civil Affairs and Psychological Operations Command, Fort Bragg, NC, published Orders 10-065-00003 transferring him to the Retired Reserve in his retired rank/grade of SPC/E-4 effective 18 November 2008.

13.  There is no evidence the applicant was promoted to SGT subsequent to
8 December 2007 and prior to the date he was discharged from the USAR on
19 November 2008.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SGT/E-5 on 1 October 2001.  He served honorably through multiple deployments within and outside continental United States.  However, on 18 November 2007, he accepted NJP under the provisions of Article 15 of the UCMJ for various offenses.  His punishment consisted of a reduction to SPC/E-4. 

2.  The orders, dated 12 December 2008, that reduced him to PFC/E-3 appear to be in error.  Regardless, there is no evidence in his records, and the applicant provides insufficient evidence, to show that he was promoted back to SGT subsequent to his reduction to SPC and prior to the date of his discharge (or transfer to the Retired Reserve) from the USAR on 19 November 2008.

3.  His combat service and the challenges he is currently experiencing are noted; however, based on the foregoing and the available evidence, the applicant's rank is correct as shown on his discharge orders and in his military service records.  Therefore, there is no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20090019663, dated 27 May 2010.



      _______ _   __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)                                         AR20100029890



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ABCMR Record of Proceedings (cont)                                         AR20100029890



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