IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130008528 


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 advancement on the Temporary Disability Retired List (TDRL) to the rank/grade of sergeant (SGT)/E-5.

2.  The applicant states in light of his service and personal sacrifices in placing the mission first, it is his fervent desire to remain a noncommissioned officer (NCO) for the record.  While assigned to the Army Sacramento Valley Recruiting Company he was a proactive NCO since 2007 and worked hard to be resilient despite difficulties in dealing with post-traumatic stress disorder (PTSD).  His first sergeant, verbally abusive by nature, was aware of his condition; however, he kept abusing him verbally.  He tried to appeal to the battalion commander several times and met with no success.  He believes the Article 15 (nonjudicial punishment (NJP)) proceedings did not disclose all the facts of his first sergeant's treatment toward NCO's assigned under him.  He believes the battalion commander made his decision to reduce him in rank without considering his input.  His attempt to speak with a Judge Advocate General officer resulted in a response of "I should appeal to the humane side" of the battalion commander.

3.  The applicant provides:

* medical evaluation board (MEB) and Department of Veterans Affairs (VA) medical records
* email traffic
* eight memoranda/letters of support 
* request for clemency and rank restoration

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he served in the Navy, Navy Reserve, Regular Army, Army National Guard, and in a U.S. Army Reserve Troop Program Unit.  On 30 May 2001, he was promoted to the rank of 
SGT/E-5.  He entered active duty in an Active Guard Reserve (AGR) status with the U.S. Army Reserve as a recruiter in 2007. 

2.  On 17 May 2011, he accepted NJP for being disrespectful in language and deportment toward his first sergeant, a superior NCO.  The punishment imposed was a reduction to the rank/grade of specialist (SPC)/E-4 and a written reprimand.  He did not appeal the commander's decision.

3.  His proceedings for processing under the Physical Disability Evaluation System (PDES) show on a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) that the board found him physically unfit and recommended his placement on the TDRL.  On 14 June 2012, the PEB assigned him a 50 percent disability rating for PTSD.

4.  On 13 July 2012, the applicant requested per memorandum that his battalion commander restore his rank to SGT/E-5.  He stated that prior to the incident for which he was reduced in rank he had been and still was at the time receiving behavioral health counseling.  He had recently been diagnosed with PTSD by military and VA personnel.  At the time he committed the Uniform Code of Military Justice (UCMJ) offense, there were additional emotional stressors in his life emanating from the loss of his father, who had passed away in November 2010.  He stated that regardless of the inner difficulties he had been dealing with, he had always done his best to be a productive member of the battalion and the two recruiting stations where he worked.  He indicated this resulted in his receiving the Recruiter Gold Ring and Glen E. Morrell awards.  At the time of this request a PEB had found him unfit for duty.  He states he had been an NCO for over 10 years and it was deeply saddening and highly demoralizing to leave the Army as a SPC.

5.  On 27 August 2012, as part of his medical retirement proceedings, the Army Grade Determination Review Board (AGDRB) considered the applicant's grade for the TDRL.  The AGDRB determined his grade at the time of separation (SPC) was the highest grade in which he served satisfactorily for the purpose of computation of disability retirement/separation pay.

6.  On 31 August 2012, a paralegal specialist stated the applicant was requesting that the battalion commander take supplemental action by reducing the applicant's punishment.  He stated that the punishment imposed was disproportionate to the offense or the offender.  He indicated the action requested would restore the applicant's rank to SGT without entitling him to back pay for the restoration action.    

7.  On 6 November 2012, the applicant's battalion commander responded per email that he had elected not to reinstate the applicant's rank prior to his expiration term of service. 

8.  He was retired on 20 November 2012 and placed on the TDRL on 21 November 2012.  His DD Form 214 shows his rank as SPC and his pay grade as E-4.  Item 18 (Remarks) of this form shows his retired list grade as SPC.  He was serving in an AGR status at the time.

9.  His DD Form 214 shows four Army Achievement Medals, Combat Action Badge, and Gold Recruiter Badge with three star sapphires.

10.  He provides seven letters from NCO's attesting to his strong work ethic and mentorship during several years of performance as a recruiter and a letter from the executive director of The Forgotten Soldier Program in support of his request.

11.  Army Regulation 15-80 (AGDRB 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  Though evidence shows he was diagnosed with PTSD, he has not shown how this medical condition is mitigating with regard to the offense for which he was reduced.

2.  He received NJP and was reduced in rank to SPC/E-4 for being disrespectful in language and deportment toward his first sergeant.  He accepted the punishment without appealing the commander's decision in the NJP proceedings.  A PEB determined he was unfit for further military service due to being diagnosed with PTSD and based on the AGDRB's decision he was placed on the TDRL in the rank of SPC/E-4.

3.  Regulatory policy states 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 caused by NJP pursuant to Article 15 of the UCMJ.  Further, he served as an NCO for 10 years and it was his duty to support and abide by the UCMJ.  By committing the aforementioned offense, he knowingly risked a military career and violated the trust and confidence placed in him as an NCO.

4.  The NJP issuing authority declined a request to mitigate the applicant's punishment of reduction to SPC/E-4.  It is reasonable to presume the NJP issuing authority was sufficiently aware of the circumstances to make an equitable and just decision in this regard.  Notwithstanding the positive documents in support of his request and the awards shown in his record for his performance as a recruiter and in combat, there is no evidence of acts or achievement prior to or following his retirement that would be so significantly meritorious as to mitigate his misconduct.

5.  In view of the foregoing, there is an insufficient basis for advancing him on the retired list to SGT/E-5.

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)                                         AR20130008528



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ABCMR Record of Proceedings (cont)                                         AR20130008528



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