IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20120000642 


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 correction of his records to show he retired for disability in the rank/pay grade of specialist (SPC)/E-4 instead of private first class (PFC)/E-3.

2.  He states he served honorably for 21 months as an SPC/E-4 although he received nonjudicial punishment (NJP) as shown in the DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated “28” May and 14 July 2010.

3.  He feels the counseling he received paints a picture of a command that was looking for anything to force him to leave the Army at his expiration of term of service (ETS) date and not be processed under the fully-justified medical evaluation board (MEB) process.

4.  He contends his squad leader was fully aware of the circumstances for his tardiness as shown in the DA Form 2627, dated 25 May 2010.  His second receipt of NJP was based on a platoon sergeant who cussed him out in front of his family and the commanding officer who cancelled his convalescent leave.

5.  The applicant provides:

* four DA Forms 4865 (Developmental Counseling Form)
* two DA Forms 2627
* a DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) 
* an Army Grade Determination Review Board (AGDRB) packet
* five letters of recommendation

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army in the rank/pay grade of PFC/E-3 on 
10 August 2006.  After completion of training, he served in military occupational specialty 25S (Satellite Communication Systems Operator/Maintainer) and was promoted to SPC/E-4 (date not known).

2.  The applicant provided several Developmental Counseling Forms which show he was counseled on the following:

* punctuality
* failure to report
* disrespect to a noncommissioned officer (NCO)

3.  He disagreed with the counseling received and noted he:

* tried to contact his team leader to tell him he would be late for formation because he was being held at the gate for inspection
* was not aware of any specific reporting time for outprocessing
* made other outprocessing plans which included seeing a physician
* was not involved in any incident of "disrespect" with an NCO
* asked the NCO to show him the same respect he expected as an NCO while the NCO yelled at him

4.  He provided two DA Forms 2627 and a DA Form 2627-2 which show:

	a.  He received NJP on 25 May 2010 for failing to be at his place of duty at the prescribed time on 4 February and 28 April 2010.  His punishment included reduction to the rank/pay grade of PFC/E-3 which was suspended and would be automatically remitted if not vacated before 21 November 2010.

	b.  On 12 July 2010, his previous punishment was vacated because he failed to go to his place of duty at the prescribed time on 6 July 2010 and, accordingly, he was reduced to the rank/pay grade of PFC/E-3.

	c.  In addition to aforementioned offense, he received NJP on 12 July 2010 for using disrespectful language to an NCO by shouting into the telephone in a loud and aggressive manner.  He was further reduced to the rank/pay grade of private (PVT)/E-2.

5.  On 19 October 2011, a physical evaluation board (PEB) convened.  The DA Form 199 (PEB Proceedings) shows he was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and was granted a 50-percent disability rating.  The PEB recommended that the applicant be placed on the Permanent Disability Retired List (PDRL).  His rank/pay grade was listed as 
PVT/E-2.  His record does not show he was advanced above this grade subsequent to his reduction.

6.  He provided five letters of recommendation for promotion to the rank/grade of SPC/E-4.  These letters show that during his assignment to the Warrior Transition Unit:

* the staff strongly recommended that he be promoted to the rank/grade of SPC/E-4
* the applicant's great dedication and leadership greatly improved the adaptive sports program for all wounded Soldiers assigned to Fort Meade, MD
* he strived to be his best despite his numerous injuries and medical conditions
* he was a positive role model who inspired and motivated his fellow wounded Soldiers 
* he always volunteered his time and asked to be placed in a leadership position no matter what the mission
* the applicant received nothing but excellent reviews from his squad leader, platoon sergeant, first sergeant, and internship supervisor
* he was resourceful and always willing to provide his fellow Soldiers with guidance as they adapted to the unit
* he was enrolled in an internship program with the National Security Agency and held a top secret security clearance

7.  On 22 November 2011, the AGDRB considered his case.  After a review of his official records including his PEB and the two NJP's he received, which included one in the rank/pay grade of SPC/E-4, the AGDRB determined the highest rank/pay grade in which he satisfactorily served for the purpose of disability retirement was PFC/E-3.

8.  On 26 February 2012, he was honorably retired under the provisions of chapter 4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, permanent (enhanced).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 5 years, 6 months, and 17 days of active service.  This form also shows in:

* item 4a (Grade, Rate or Rank) – "PV2"
* item 4b (Pay Grade) – "E-2"
* item 12i (Effective Date of Pay Grade) – "2010  07  14"
* item 18 (Remarks) – "retired list grade PFC"

9.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) established policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.

	a.  The AGDRB will consider each case on its own merits.  Generally, determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.

	b.  Enlisted personnel being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination prior to separation or retirement.

	c.  Paragraph 2-5b(3) states that service in the highest grade or intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was caused by NJP pursuant to the UCMJ, Article 15.

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.

	a.  Paragraph 3-18 states, in part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence.

	b.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states the basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

	c.  Paragraph 3-28 further states clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 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 is entitled to the grade equivalent to the highest grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired in the rank/pay grade of SPC/E-4 due to physical disability.

2.  The evidence of record clearly shows the applicant was reduced to PFC/E-3 as a result of a vacated punishment and further reduced to PVT/E-2 on 14 July 2010.

3.  Subsequently, the AGDRB reviewed the applicant's records and determined that the highest pay grade he held satisfactorily was E-3.

4.  The letters of recommendation for promotion provided by the applicant were also considered; however, none of the letters described an injustice associated with the NJP which was imposed against the applicant.

5.  The evidence shows the applicant was afforded all required due process for both the NJP's and the AGDRB.

6.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states that in the absence of evidence to the contrary, we presume that all actions taken by the military were proper.  There is nothing in the available records or in the evidence submitted to overcome this presumption.

7.  The available evidence is insufficient to overturn the NJP's or the determination of the AGDRB that the applicant's service in rank/pay grade SPC/E-4 was unsatisfactory.

8.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20120000642



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ABCMR Record of Proceedings (cont)                                         AR20120000642



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