BOARD DATE: 27 November 2012
DOCKET NUMBER: AR20120007437
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 his records be corrected to show he retired in pay specialist five, pay grade E-5.
2. The applicant states his misconduct was caused by his psychiatric condition that led to his medical retirement. Had he not developed a mental disorder he would not have committed the offenses that led to his receipt of his nonjudicial punishment (NJP) and reduction in rank. Although he retired in pay grade E-4 he should have been retired in pay grade E-5, the highest grade he held.
3. The applicant provides no supporting documentation.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.
3. The applicant enlisted in the Regular Army on 22 February 1977. He initially served in the military occupational specialty (MOS) 13B (Cannoneer). In 1980, he retrained into MOS 91C (Patient Care Specialist) and was promoted to specialist five (E-5).
4. The applicant's record contains records of NJP as follows:
a. 26 May 1981, for being absent from his place of duty;
b. 30 June 1981, for being absent from his place of duty; and
c. 5 May 1982, for being absent from his place of duty on two occasions.
5. His second NJP reduced him to specialist four (SP4), pay grade E-4, and his third NJP to private first class (PFC), pay grade E-3.
6. In December 1981, the applicant was hospitalized for confusion, psychomotor retardation, delusions of grandeur, and auditory hallucinations. He was diagnosed as suffering from a schizophreniform disorder and referred to Fitzsimons Army Hospital for a Medical Evaluation Board (MEB), effective 11 March 1982.
7. In the Medical Evaluation Board Narrative Summary, it is reported that the applicant had been reduced to E-5 for sleeping on duty and was facing charges resulting from an vehicular accident and his refusal to make payments for damages. He was facing NJP and demotion to PFC at the time he was initially hospitalized. There is a note that the applicant reported being hospitalized in 1977 for receiving messages from God. He was diagnosed as suffering from a schizophrenic disorder and referred to a Physical Evaluation Board (PEB).
8. The PEB determined the applicant to be unfit for continuation on active duty, affording him a 30 percent disability evaluation and recommending he be placed on the Temporary Disability Retired List (TDRL).
9. On 15 July 1982, the applicant was retired and placed on the TDRL. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his pay grade as a private first class (E-3).
10. On 29 July 1982, a retirement grade determination was made resulting in his retirement orders being amended to show his retired pay grade as specialist four (SP4) (E-4).
11. The applicant was removed from the TDRL and permanently retired on 21 November 1983 as SP4.
DISCUSSION AND CONCLUSIONS:
1. The applicant was reduced to SP4 on 31 June 1981, six months prior to his initial hospitalization for the psychiatric condition that ultimately resulted in his medical retirement.
2. As the result of a third NJP, he was further reduced to PFC on 5 May 1982.
3. The applicant has not provided and the record does not contain any evidence that he was manifesting symptoms of his mental condition at the time of either his first or second NJP. It was based on the first NJP that he was reduced to
4. He was officially a PFC at the time he separated from active duty. His DD Form 214 therefore correctly shows his rank as PFC. He was placed on the TDRL as a SP4 because of a grade determination.
5. Without a clear indication that the cause of all of the applicant's misconduct was a direct result of his developing psychiatric condition, relief to show he was retired in pay grade E-5 is not warranted.
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.
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