IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120022965 


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 her records to show she was retired by reason of permanent disability in the rank/grade of specialist (SPC)/E-4 vice private (PV1)/E-1.

2.  The applicant states her injuries were service-connected.  She was medically evacuated from Korea to the Warrior Transition Unit (WTU), Fort Benning, GA.  Her rank/grade should be restored to SPC/E-4 because all the charges prior to March 2012 were dismissed.  She won the court-martial.  

3.  The applicant provides:

* Orders 262-0196 (retirement) and Orders 271-0100 (amendment)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Dismissal of charges memorandum and acknowledgement memorandum
* Multiple DA Forms 4187 (Personnel Action) of absent without leave (AWOL), present for duty (PDY), and deletion of erroneous entries
* Standard Form (SF) 600 (Chronological Record of Medical Care)
* Department of Veterans Affairs (VA) Disability Evaluation System Proposed Rating

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 January 2009 and she held military occupational specialty 74D (Chemical Operations Specialist).  She was promoted to private (PV2)/E-2 on 15 July 2009.

2.  She served in Korea from on or about 8 December 2009 to on or about 6 June 2010.  Her Enlisted Record Brief (ERB) shows she was promoted to private first class (PFC)/E-3 on 15 January 2010.

3.  She was medically evacuated from Korea to Fort Benning on or about 6 June 2010, for menorrhagia, anemia, and hypertension.  She was placed in the WTU for chronic neck pain, headaches, and memory problems attributed to post-concussive syndrome.  She underwent various tests, evaluations, therapy, pain management, and medical examinations.

4.  Her ERB shows she was promoted to SPC/E-4 on 15 January 2011.

5.  On 27 August 2011, she was transferred to the 44th Chemical Company,
2nd Chemical Battalion, Fort Hood, TX.  In October 2011, she was referred to a medical evaluation board (MEB) for various conditions.  She had failed retention standards.

6.  She also submitted a memorandum from the Commander, 2nd Chemical Battalion to the Commander, 44th Chemical Company and to the Senior Defense Counsel – Trial Defense Service, Fort Hood, dated 16 April 2012, wherein the Commander stated:

	a.  In accordance with the Rule for Court-Martial 401c, any previous charges and specifications preferred against [Applicant] in conjunction with misconduct committed prior to 6 March 2012, to include the charge sheet preferred on 6 March 2012, are dismissed without prejudice.

	b.  This case involved misconduct over a period of time.  "I, hereby, direct the Soldier's chain of command to conduct a thorough inquiry into her misconduct, as well as any other potential violations of the Uniform Code of Military Justice (UCMJ), and take whatever action they deem appropriate after considering the specific facts and circumstances of this case."

7.  Additionally, on 16 April 2012, at an Article 15 proceeding, the applicant was found guilty of one specification of AWOL under Article 86 of the UCMJ; one 

specification of insubordinate conduct toward a Noncommissioned Officer (NCO) under Article 91; one specification of failing to obey an order under Article 92; and one specification of willfully disobeying a superior commissioned officer under Article 90.  As a result of these proceedings, her battalion commander imposed punishment of reduction to PV1/E-1, forfeiture of pay for 2 months, and restriction for 30 days.  However, the battalion commander suspended the reduction for 6 months and the forfeiture of pay for 4 months.

8.  On 4 May 2012, an MEB convened and found she was diagnosed as having the medically-unacceptable conditions of cervicalgia and anxiety disorder.  The MEB recommended the applicant's referral to an informal physical evaluation board (PEB).  She agreed with the MEB's findings and recommendation and indicated she did not desire to continue on active duty.  The DA Form 3947 (MEB Proceedings) listed her rank/grade as SPC/E-4.

9.  On 31 May 2012, the unit first sergeant ordered the applicant to come with him to the orderly room.  Instead she disobeyed the order and ran into a highly trafficked street endangering herself and her fellow Soldiers who attempted to stop her.  From there she ran into the Post Exchange where she opened a package of Mach 3 razors and threatened to try and cut herself with them.  This conduct was found to be in violation of Articles 80, 91, and 121 of the UCMJ.

10.  She accepted nonjudicial punishment under the provisions of Article 15, UCMJ and the previous suspended punishment was vacated.  She was subsequently reduced to PV1/E-1 with a forfeiture of pay.

11.  On 30 July 2012, an informal PEB convened and found her medical conditions of anxiety disorder and cervicalgia prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit.  She was rated under the VA Schedule for Rating Disabilities and granted a combined rating of 70 percent. The PEB recommended permanent retirement.  The DA Form 199 (PEB Proceedings) listed her rank/grade as private (PV2)/E-2.

12.  Orders 262-0196, issued by Headquarters, III Corps, Fort Hood, dated
18 September 2012, ordered her retirement effective 26 September 2012 and placement on the Retired List in the rank/grade of PV1/E-1, effective
27 September 2012. 

13.  On 26 September 2012, she was retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 

Separation), chapter 4, by reason of disability – enhanced.  She completed
3 years, 8 months, and 12 days of creditable active service.  The DD Form 214 she was issued at the time shows in:

* item 4a (Grade, Rate or Rank) the entry "PV1"
* item 4b (Pay Grade) the entry "E-1"
* item 12i (Effective Date of Pay Grade) the entry "2012  05  24"

14.  She submitted multiple DA Forms 4187 showing her duty status changed from PDY to AWOL on 6, 14, 18, and 20 January 2012.  Each DA Form 4187 has another DA Form 4187 attached to it deleting each entry as an erroneous entry.

15.  During the processing of this case, on 27 March 2013, an advisory opinion was obtained from the Office of Promotions at the U.S. Army Human Resources Command (HRC).  An HRC official recommended approval of her request as follows:

	a.  On 16 April 2012, the commander dismissed all charges without prejudice against the applicant.  As such, she should have been separated at the rank of E-4 with an effective date of rank of 15 January 2011.

	b.  She should be entitled to receive back pay from 24 May 2012 to 26 September 2012 and have her DD Form 214 corrected to show the proper rank, pay grade, and effective date of pay grade in items 4a, 4b, and 12h respectively.

16.  On 5 April 2013, the applicant was provided with a copy of this advisory opinion for information and to allow her the opportunity to submit comments.  She did not respond.

17.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 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).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SPC/E-4 on 15 January 2011.  However, it appears upon her arrival to Fort Hood and while undergoing disability processing, court-martial charges were preferred against her on 6 March 2012 for what appears to be multiple incidents of AWOL (as shown on the DA Forms 4187 she submitted) and other charges (as provided by her former commander). 

2.  It also appears the convening authority, after considering her case, ordered the dismissal, without prejudice, of any previous charges and specifications preferred against her in conjunction with misconduct committed prior to 6 March 2012, to include the charge sheet preferred on 6 March 2012.  However, he also ordered her chain of command conduct a thorough inquiry into her misconduct, as well as any other potential UCMJ violations, and take whatever action they deemed appropriate after considering the specific facts and circumstances of her case.

3.  Although such inquiry and subsequent actions by her chain of command are not available for review with this case, her former commander confirmed she accepted NJP under Article 15, UCMJ on 16 April 2012, for insubordination, failing to obey an order, and willfully disobeying a superior commissioned officer. Her punishment consisted of a suspended reduction to PV1/E-1, forfeiture of pay, and restriction for 30 days.  However, on 31 May 2012, her suspended reduction was vacated after she again violated the UCMJ.  She was subsequently reduced to PVT/E-1 with a forfeiture of pay.

4.  Notwithstanding the favorable HRC advisory opinion, it is clear the applicant was reduced through nonjudicial punishment, not court-martial, by a competent authority at the time.  In the absence of evidence to the contrary, it appears her rank/grade and effective date of pay grade are correctly shown on her DD Form 214.  She has not provided sufficient evidence to show her grade or effective date of grade is in error.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120022965



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ABCMR Record of Proceedings (cont)                                         AR20120022965



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