BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005322 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 December 2010 to show he retired by reason of disability in the rank/grade of sergeant (SGT)/E-5 or at a minimum specialist (SPC)/E-4 instead of private (PV1)/E-1.

2.  The applicant states he was reduced to PV1/E-1 for an alleged positive urinalysis.  He had problems in the past with drug abuse while suffering from post-traumatic stress disorder (PTSD).  At the time of his medical review board, he was holding the rank/grade of SGT/E-5.  He was previously reduced to SPC/E-4 for his first drug offense while he was in the worst condition.  He recovered and he was rehabilitated.  He understands his disability retirement should be based on the highest rank/grade held which is SGT/E-5.  He served his country faithfully with 4 years in the U.S. Marine Corps (USMC) and 5 years in the Regular Army (RA).  He deployed four times in support of the war on terrorism.  His service caused emotional and psychological problems.  He had a distinguished record until 2009.

3.  The applicant provides a certificate awarding him the Order of the Combat Spur and two certificates awarding him the Army Commendation Medal.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the USMC, the applicant enlisted in the RA on
20 December 2005 in the rank/grade of SPC/E-4.  He held military occupational specialty 11B (Infantryman).  He was promoted to SGT/E-5 on 1 March 2007.
2.  He served in Kuwait/Iraq from 3 August 2006 to 4 October 2007 and from 1 October 2008 to 1 October 2009.  His record shows he was awarded or authorized the Iraq Campaign Medal with two bronze service stars, Army Commendation Medal (3rd Award) and with "V" Device, Navy/Marine Combat Action Ribbon, Army Good Conduct Medal, Marine Corps Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (3rd Award), Army Sea Service Deployment Ribbon (2nd Award), Combat Infantryman Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar.

3.  On 5 November 2009, he tested positive for cocaine.  He was subsequently enrolled in the Army Substance Abuse Program (ASAP).  The facts, circumstances, and disposition of this positive urinalysis are not available for review with this case.  However, his Enlisted Record Brief (ERB) shows he was reduced to SPC/E-4 on 18 November 2009.

4.  On 31 August 2010, a medical evaluation board (MEB) convened at Tripler Army Medical Center, HI, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found he was diagnosed as having the medically-unacceptable condition of PTSD.  The MEB recommended his referral to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

5.  On 7 October 2010, an informal PEB convened at Fort Lewis, WA, and found he was physically unfit due to PTSD.  The PEB rated him with a 50 percent (%) disability rating percentage and recommended his placement on the temporary disability retired list (TDRL) with reexamination in July 2011.  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.

6.  On 15 November 2010, he signed a statement indicating he waived his right to a grade determination and he would accept an E-4 rate.  

7.  On 22 November 2010, he tested positive for cocaine.

8.  Orders 327-0031, issued by the U.S. Army Garrison, Schofield Barracks, HI, dated 23 November 2010, released the applicant from his assignment and duty because of physical disability effective 14 February 2011 and placed him on the TDRL effective 15 February 2011 in the retired rank of SPC.  The statute authorizing his retirement is shown as (Title 10, U.S. Code, section) 1202.

9.  On 2 December 2010, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  His punishment included a reduction to PV1/E-1.  He elected not to appeal his punishment. 

10.  Orders 349-0015, issued by the U.S. Army Garrison, Schofield Barracks, dated 15 December 2010, amended Orders 327-0031 to show his release from active duty date on 17 December 2010 and placement on the TDRL on             18 December 2010 in the rank/grade of PV1/E-1.

11.  Accordingly, the applicant was retired on 17 December 2010 in the rank/grade of PV1/E-1 and he was placed on the TDRL on 18 December 2010 in the same rank/grade.  His DD Form 214 he was issued for this period of service shows he was retired in accordance with Army Regulation 635-40, paragraph
4-24b(2), by reason of temporary disability.  This form also shows he completed 4 years, 11 months, and 28 days of creditable active service during this period.

12.  Title 10, U.S. Code, section 1372 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 TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

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

	b.  The highest temporary grade of 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.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, 

discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states for item 4a (Grade, Rate or Rank) and 4b (Pay Grade) enter the active duty grade or rank and pay grade at time of separation 

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the RA in the rank/grade of SPC/E-4 and he was subsequently promoted to SGT/E-5 on 1 March 2007.  His record shows he was reduced to SPC/E-4 on 18 November 2009.

2.  He was referred to the physical disability evaluation system as a result of his PTSD.  He underwent an MEB which recommended his referral to a PEB.  The PEB determined he was physically unfit for further military service and recommended placing him on the TDRL with a 50% disability rating.  He agreed with the PEB's findings and recommendation.

3.  Shortly prior to his retirement, he again tested positive for cocaine and subsequently accepted NJP that resulted in his reduction to PV1/E-1 effective
13 December 2010.  He retired on 17 December 2010 in the rank/grade of
PV1/E-1, the grade of rank in which he was serving on the date his name was placed on the TDRL or the date of his retirement.  There is no evidence to show that his having PTSD rendered him unable to understand that using cocaine was wrong.  Therefore, there was neither an error nor an injustice.

4.  In view of the foregoing, 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 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)                                         AR20110005322



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ABCMR Record of Proceedings (cont)                                         AR20110005322



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