IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110019503


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 previous request to be advanced on the Retired List to the rank/pay grade of staff sergeant (SSG)/E-6, the highest grade he satisfactorily held.

2.  The applicant states:

* the Board [Army Board for Correction of Military Records (ABCMR)] failed to consider his diagnosis of post-traumatic stress disorder (PTSD) as the cause of the misconduct that resulted in his reduction in rank
* he understands the Board is not an investigative body; however, more than sufficient evidence was submitted with his original request
* according to a previous doctor's findings, his PTSD can be traced back to 1971
* certain statements in the original Record of Proceedings (ROP) seems to suggest that Board members may have had a personal bias in deciding his case
* hopefully, his appeal will be considered by all Board members and the senior Legal Advisor
* copies of his appeal will be forwarded to his Member of Congress

3.  The applicant provides:

* an extract of Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations)
* DA Form 3947 (Medical Board Proceedings), dated 3 March 1978
* Standard Form (SF) 502 (Clinical Record), dated 3 March 1978
* volumes of medical correspondence detailing his treatment from the Department of Veterans Affairs (VA) and other civilian facilities for a number of physical and mental conditions, including PTSD 
* numerous letters from the Disabled American Veterans organization, the VA, and the Social Security Administration (SSA), detailing his disability compensation 
* other medical documentation that defines various mental and psychological disorders
* excerpts from his DA Form 20 (Enlisted Qualification Record) and DA Form 2-1 (Personnel Qualification Record – Part II)
  
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 ABCMR in Docket Number AR20100008555 on 16 September 2010.

2.  The applicant provides numerous medical documents, as well as other documents that detail his level of disability as rated by the VA and SSA.  It appears this information was not previously considered by the Board; therefore, this new evidence will now be considered by the Board.

3.  The applicant enlisted in the Regular Army on 14 July 1958.  He served through multiple reenlistments, in various stateside and overseas assignments, and held military occupational specialties (MOS) 16D (Hawk Missile Crewmember) and 16E (Hawk Fire Control Crewmember).  

4.  On 24 March 1967, he was promoted to the rank/grade of SSG/E-6.  

5.  On 5 February 1969, after receiving nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), he was reduced to the rank/grade of sergeant (SGT)/E-5.

6.  On 13 November 1971, he was again promoted to the rank/grade of SSG/E-6. 

7.  On 29 April 1977, after receiving NJP under the provisions of Article 15, UCMJ, he was again reduced to the rank/grade of SGT/E-5.

8.  On 14 September 1977, at a Special Court-Martial at Fort Bliss, TX, he pled guilty to the Charge of filing a false claim against the U.S. Government by filing a false DD Form 1351-4 (Voucher or Claim for Dependent Travel) on 17 January 1977.  
9.  Special Court-Martial Order Number 26, Headquarters, U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, TX, dated 27 September 1977, ordered his reduction to the rank/grade of specialist four (SP4)/E-4.

10.  On 31 July 1978, he was honorably retired at the completion of 20 years and 8 days of active Federal service.  On 1 August 1978, he was placed on the Retired List in the rank/grade of SP4/E-4.

11.  On 6 February 2004, the Army Grade Determination Review Board (AGDRB) considered his request for advancement on the Retired List to SSG, as the highest grade he satisfactorily held.  The AGDRB determined he had not served satisfactorily as a SSG; however, board members agreed he had served satisfactorily as a SGT.  Therefore, they advanced him on the Retired List to SGT, effective 23 July 1988, in accordance with Title 10, U.S. Code, Section 3964 (Higher grade after 30 years of service:  warrant officers and enlisted members).

12.  His service medical records are not available for review.

13.  He provides:

   a. DA Form 3947 and SF 502, dated 3 March 1978, which diagnosed him with "depressive neurosis, chronic, moderate, improved on medication, manifested by mixed depression and anxiety, sleep and appetite disturbances, psychosomatic symtomatology including headaches and gastrointestinal distress, pessimistic outlook, and some symptomatic use of alcohol."  The examining official further stated in his recommendation, "this patient suffers from a chronic nervous condition which warrants continued treatment with medication and supportive psychotherapy.  It is not incapacitating for military service and does not warrant separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) (emphasis added).  The condition is of such nature that, upon discharge from military service, it would be expected to cause considerable impairment of social and industrial adaptability.  Referral to a Physical Evaluation Board (PEB) is not warranted for psychiatric reasons.  The patient is considered competent for pay purposes and responsible for his behavior (emphasis added).  He is not considered dangerous or suicidal." 

   b. Volumes of medical correspondence detailing his treatment from the VA and other civilian facilities for a number of physical and mental conditions, including PTSD, covering an approximately 15-year period, commencing shortly after his retirement.    

   c. Numerous letters from the Disabled American Veterans organization, the VA, and the Social Security Administration (SSA), detailing his disability compensation.

14.  Title 10, U.S. Code, Section 3964 (Higher grade after 30 years of service:  warrant officers and enlisted members), provides, in pertinent part, that each retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army.  This section applies to Army warrant officers; regular enlisted members; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty.

15.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  Paragraph 2-6 (Service in Lower Grade) provides, if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2-5 applies.  Paragraph 2-5 (Unsatisfactory Service) of this Army regulation provides, in pertinent part, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends PTSD played a contributing or decisive factor in the substandard performance and misconduct that resulted in his reduction in rank and grade.

2.  He was twice promoted to SSG, and each time his own misconduct resulted in his reduction to SGT.  

3.  He submitted evidence that shows he suffered from a number of medical and mental conditions following his retirement, for which he received disability compensation from the VA and the SSA.  It is unclear whether or not those conditions exist today, or whether or not he continues to receive disability compensation.  Nonetheless, the submitted evidence does not justify or explain his duty performance and repeated misconduct, nor does it support a correlation between his mental issues and his misconduct that resulted in his reduction below the rank of SSG. 
4.  His request has been competently reviewed on 2 separate occasions: once by the AGDRB and again by the ABCMR.  He has not submitted any evidence that shows his case was improperly considered, or that he was denied the full consideration of his request based on its merits.  

5.  In view of the foregoing, he is not entitled to relief in this case.  

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100008555 dated 16 September 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)                                         AR20100015589



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ABCMR Record of Proceedings (cont)                                         AR20110019503



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