IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20110003923 


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, correction of his records to show he retired for disability in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4. 

2.  The applicant states he received an Article 15 due to an arrest for disorderly conduct.  He believes his retirement should be based on the higher rank held because it was the arrest that led to a diagnosis of post-traumatic stress disorder (PTSD).  The root cause of the arrest was his excessive consumption of alcohol. Although he does not excuse his behavior, substance abuse problems are commonly associated with PTSD.  His conduct prior to and since the incident has been exemplary.  

3.  The applicant provides:

* Denial letter from the Army Grade Determination Review Board (AGDRB)
* DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER) for various rating periods
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* MEB/PEB allied documents – Standard Forms 600 (Chronological Record of Medical Care), letters, medication profiles, and other medically-related documents



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 16 April 1998 and held military occupational specialties 35P (Cryptological Linguist) and 31D (Criminal Investigation Division Special Agent).  He served through multiple reenlistments in a variety of stateside and overseas assignments and he attained the rank/grade of SGT/E-5 on 1 September 2004.

2.  His NCOERs consistently show he was rated successful or among the best with superior overall potential.

3.  On 10 June 2009, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk and disorderly and unlawfully entering the dwelling of Ms. BJG.  His punishment consisted of a reduction to SPC/E-4, 45 days of extra duty and restriction (suspended), and a written reprimand.  He elected not to appeal his punishment.  

4.  His records contain a Relief for Cause NCOER that covered the rating period 30 January 2009 through 10 June 2009.  His rater and senior rater indicated:

* he was arrested in Highland Falls, NY on 30 January 2009 for illegally entering a residence and causing damage while intoxicated
* he was convicted on 3 June 2009 for disorderly conduct during a civilian court hearing
* the perception of improper conduct adversely affected morale and discipline within the unit
* he set a poor example in choosing to use alcohol to deal with personal problems
* he failed to comply with instructions of superiors on several occasions
* he lacked concern for his own Soldiers' safety and combat readiness
* he consistently engaged in unsafe behavior
* his failure to maintain judgment jeopardized the unit's overall mission
* he was removed as a U.S. Army CID Special Agent as a result of his personal actions
* do not consider for promotion or advanced schooling

5.  He was reduced to SPC/E-4 on 10 June 2009.  There is no indication he was promoted to SGT/E-5 after this date.



6.  On 3 January 2011, an informal PEB convened at Walter Reed Army Medical Center.  The PEB found his medical condition of PTSD prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 50% disability rating.  The PEB recommended that the applicant be placed on the temporary disability retired list (TDRL) with reexamination in October 2011.  He concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

7.  The PEB noted that he deployed to Iraq from October 2005 through October 2006 and he was psychiatrically injured due to exposure to mortar and rocket attacks, seeing dead people, traumatic scenes, and war crimes.  During his 2006 deployment he consumed alcohol in excess in an attempt to self-medicate.  He was enrolled in the Army Substance Abuse and Prevention program and he attended AA (alcohol anonymous) classes.  He was also treated for an adjustment disorder with anxiety and depressed mood.  

8.  On 16 February 2011, Headquarters, U.S. Army Garrison, West Point, NY, published Orders 047-0006 placing him on the TDRL effective 21 May 2011 in his retired rank/grade of SPC/E-4.

9.  On 20 May 2011, he was honorably retired under the provisions of paragraph 4-24B(2), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability, temporary.  The DD Form 214 he was issued shows he completed 13 years, 1 month, and 5 days of active service. This form also shows in:

* item 4a (Grade, Rate or Rank) "SPC"
* item 4b (Pay Grade) "E-4"
* item 12i (Effective Date of Pay Grade) "2009  06  10"

10.  On 15 February 2011, the AGDRB considered his case.  After a review of his official records including his PEB and the Article 15, the AGDRB determined the highest grade in which he satisfactorily served for the purpose of disability retirement was E-4 which was the grade he held at the time of retirement.

11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders). 

12.  Title 10, U.S. Code, section 1372 (grade on retirement physical disability, members of the 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 served in an active duty status from April 1998 through May 2011 and he was promoted to SGT/E-5 on 1 September 2004.  He also received mostly outstanding NCOERs during the period that he served.  However, on 
10 June 2009, he accepted NJP under the provisions of Article 15 of the UCMJ for being drunk and disorderly and he was reduced to the rank of SPC/E-4 after he unlawfully entered the private residence of a female and damage property. 

2.  It is clear that he did not perform satisfactorily in the rank/grade of SGT/E-5 and as required by law, he retired in the rank/grade of SPC/E-4 which is appropriately shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

3.  Additionally, there is no evidence in his records and he did not provide substantiating evidence that shows PTSD contributed to his serious misconduct.  

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)                                         AR20110003923



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ABCMR Record of Proceedings (cont)                                         AR20110003923



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