IN THE CASE OF:	 

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130001121


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 record to show he was retired in the rank/grade of sergeant (SGT)/E-5.

2.  The applicant states he held the rank of SGT satisfactorily for 36 months.

3.  The applicant provides:

* a memorandum from the Commander, Landstuhl Regional Medical Center, subject: Behavioral Health (BH) Review of Narrative Summary for Specialist (SPC) [Applicant's name and partial Social Security Number], dated 23 April 2012
* a statement from the applicant to the Army Grade Determination Review Board (AGDRB), dated 7 September 2012
* DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report), for the periods 1 December 2007 through 30 November 2008,
1 December 2008 through 30 November 2009, and 1 December 2009 through 31 August 2010
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 19 June 2012

CONSIDERATION OF EVIDENCE:

1.  On 22 June 2005, the applicant enlisted in the Regular Army.  He completed one station unit training (OSUT) at Fort Benning, GA, and he was awarded military occupational specialty (MOS) 11B (Infantryman).

2.  On or about 26 October 2005, after completing OSUT, he was reassigned to Company B, 2nd Battalion, 8th Cavalry Regiment, 1st Brigade Combat Team,   1st Cavalry Division, at Fort Hood, TX.

3.  A review of his Enlisted Record Brief (ERB) shows he was promoted to the rank/grade of:

* private (PV2)/E-2, effective 1 December 2005
* private first class (PFC)/E-3, effective 1 June 2006
* SPC/E-4, effective 22 June 2007
* SGT/E-5, effective 1 December 2007

4.  On 4 October 2010, he was reassigned to Headquarters and Headquarters Company, 3rd Battalion, 4th Infantry Regiment, 170th Infantry Brigade Combat Team, at Baumholder, Germany.

5.  On 17 November 2011, he accepted nonjudicial punishment (NJP), under the provisions of Article 15, UCMJ for wrongfully misusing his prescription drugs.  His punishment included a suspended reduction to SPC/E-4.

6.  On 18 July 2011, he was medically referred for enrollment in the Army Substance Abuse Program (ASAP).

7.  On 20 December 2011, his previously-suspended reduction to SPC/E-4 was vacated.

8.  On 19 June 2012, he accepted NJP under the provisions of Article 15 of the UCMJ, for wrongfully possessing drug-abuse paraphernalia and for wrongfully possessing heroin.  His punishment included reduction to PV2/E-2.

9.  Orders 242-0005, issued by the Installation Management Command – Europe, Baumholder Transition Center, dated 29 August 2012, directed his release from active duty by reason of temporary physical disability, in the rank/grade of PV2/E-2, effective 20 September 2012.  These orders further directed his placement on the Temporary Disability Retired List (TDRL), in the same rank/grade, effective 21 September 2012.

10.  On 20 September 2012, he was retired and placed on the TDRL accordingly in the rank/grade of PV2/E-2.

11.  Army Regulation 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB.  Most grade determinations do not require action by the AGDRB, or the exercise of discretion by other authorities, because they are automatic grade determinations that result from the operation of law and this regulation.

	a.  A grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay.  Although a lower grade determination may affect an individual adversely, it is not punitive.

	b.  Paragraph 2-5 outlines grade determination considerations.  It states that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by NJP pursuant to Article 15 of the UCMJ; or the result of the sentence of a court-martial.  It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

12.  Title 10, U.S. Code, section 1372 provides the legal authority for grades to be awarded to members retiring for physical disability.  It states, in pertinent part, that any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following:  the grade in which he is serving on the date when his name is placed on the Retired List; the highest grade in which he served satisfactorily; or the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show his rank/grade as SGT/E-5, because he served as a SGT satisfactorily for 36 months.

2.  A Soldier being retired for physical disability is entitled to be retired in a grade equivalent to the highest grade in which he or she served satisfactorily.  The applicant received NJP while serving as both a SGT and a SPC; therefore, his service in both of these grades, regardless of previous time spent, was considered unsatisfactory.

3.  Therefore, the highest grade in which he served satisfactorily for the purpose of computation of disability retirement pay is the grade that he held on the date of his separation.

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)                                         AR20090005877



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ABCMR Record of Proceedings (cont)                                         AR20130001121



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