IN THE CASE OF:	  

		BOARD DATE:  10 October 2013

		DOCKET NUMBER:  AR20130003541 


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 that he receive a better grade determination than that which was determined by the Army Grade Determination Review Board (AGDRB).

2.  The applicant states that the grade determination made by the AGDRB is an injustice as he has served 8 years of service and was an outstanding Soldier and leader.  He goes on to state that he is married with a family and cannot support his family on E-1 pay, especially since he was injured. 

3.  The applicant provides copies of four evaluation reports, his mental status evaluation and a patient movement request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 May 2004 for a period of     3 years and 16 weeks and training as a fire support specialist.  He completed his one station unit training and was assigned to Fort Campbell, Kentucky, for his first and only assignment.

2.  He remained on active duty through continuous reenlistments and deployed to Iraq during the period of 20050914 – 20060905 and 20070925 – 20081120 and he deployed to Afghanistan during the period 20100215 – 20101220.

3.  He was promoted to the rank of sergeant on 1 May 2007 and to the rank of staff sergeant on 1 August 2010.
4.  Although the records of nonjudicial punishment (DA Form 2627) are not present in the available records, his records show that nonjudicial punishment (NJP) was imposed against him on 20 June 2011 which resulted in his being reduced to the pay grade of E-5.  On 26 August 2011, NJP was again imposed against him and resulted in his being reduced to the pay grade of E-4.  On 
15 November 2011, NJP was again imposed against him and resulted in his being reduced to the pay grade of E-1.  Evidence contained in his records implies that his reductions were the result of the wrongful use of illegal drugs. 

5.  On 27 December 2012, the AGDRB determined that the highest grade he satisfactorily served in was the pay grade of E-1.

6.  On 24 February 2012, the applicant was honorably retired and placed on the Temporary Disability Retired List (TDRL) in the pay grade of E-1 due to disability, temporary (enhanced).  He had served 8 years and 9 months of active service.  Additionally, he was awarded two awards of the Purple Heart and the Combat Action Badge.

7.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) generally states that a grade 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.  It also provides, in pertinent part, that circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the grade at which the misconduct was committed.

8.  Paragraph 2-5 of this same regulation provides, in pertinent part, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause, was owing to misconduct, caused by NJP pursuant to Article 15 of the UCMJ, or the result of the sentence of a court-martial.  One specific act of misconduct may or may not form the basis for a determination that the overall time served in that grade was unsatisfactory regardless of the period of time served in grade.  This regulation further states that 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.

9.  Army Regulation 15-80 also provides, in pertinent part, that grade determinations for individuals retired for nonregular service under Title 10, U.S. Code, section 12731, are conducted automatically by the Army Reserve Personnel Command [now named the U.S. Army Human Resources Command, St. Louis, Missouri] and other separation authorities when individuals are placed on the retired list.  Some 30-year cases, however, must be initiated by a written request from the retiree concerned.  When a reduction from the highest grade held was caused by misconduct, inefficiency, or for cause, the retiree must initiate the grade determination process at the 30-year mark or later.  In such cases, the retiree is presumed not to have served satisfactorily in the higher grade; therefore, the retiree must request to initiate a grade determination review if the retiree believes advancement is appropriate.  Regardless of when the 30-year grade determination is accomplished, resulting advancement on the retired list will not be effective until the 30-year mark.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was placed on the retired list in the rank and pay grade higher than the pay grade of E-1. 

2.  While the applicant indeed served as an SSG/E-6 for about 10 months, he subsequently was reduced to the pay grade of E-5 for misconduct and then to the pay grade of E-4 for misconduct and then to the pay grade of E-1 for misconduct.  

3.  As a senior noncommissioned officer (NCO), he had the responsibility to set the example for subordinate Soldiers and by committing the aforementioned offenses, he knowingly risked a military career, violated the trust and confidence placed in him as a senior NCO, and undoubtedly caused an adverse impact on the morale of his command.  Notwithstanding the applicant's service as an SSG/E-6 prior to his offenses, it appears that these offenses so far outweighed his service as an SSG/E-6, that placing him on the retired list in a higher rank and pay grade cannot be justified.

4.  Inasmuch as the applicant has not provided sufficient evidence to support his contentions or overcome the decision of the AGDRB, there appears to be no basis to grant his request for placement on the Retired List in a higher grade.




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)                                         AR20130003541





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ABCMR Record of Proceedings (cont)                                         AR20130003541



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