BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140009395 


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 record to show she retired for disability in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant
(SGT)/E-5.

2.  The applicant states she served her country for 32 years, volunteered for two deployments, and was subsequently reduced in rank for misconduct.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) issued on 27 May 2011 and15 October 2007
* National Guard Bureau Certificate of Service

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant initially enlisted in the United States Army Reserve (USAR) on 28 September 1981 and continuously through multiple periods of reenlistment in that capacity, the Army National Guard (ARNG), and on active duty.  On 13 April 2007, while serving on active duty as a member of the USAR, she was promoted to SSG/E-6.

3.  On 17 October 2010, the applicant enlisted in the the Maine ARNG (MEARNG).  She held military occupational specialty 42A (Human Resource Specialist).

4.  On 9 June 2011, the applicant was notified that her company commander was considering whether she should be punished under Section 451-A of the Maine Code of Military Justice (MCMJ), for on or about 24 November 2009, presenting a false official document showing she passed the National Registry EMT-Basic Certification Examination and based on that document, deploying to Afghanistan as the senior medic with her unit.

5.  On 18 June 2011, the applicant elected not to demand a trial by court-martial and chose for the matter to be handled by her battalion commander at a closed hearing and to present matters in defense, mitigation, and/or extenuation.

6.  Having considered all matters presented in the closed hearing, the commander found her guilty of the charge and specification against her.  The punishment imposed consisted of a reduction to SGT and prohibition of promotion for one year.  The applicant did not appeal this punishment.

7.  Her OMPF contains Joint Forces Headquarters, MEARNG, Order Number 217-014, dated 5 August 2011.  It shows the applicant was reduced from 
SSG/E-6 to sergeant (SGT/E-5) on 28 July 2011.

8.  On 17 January 2014, the Chief, Operations Division, United States Army Physical Disability Agency (USAPDA), notified the applicant the USAPDA found she had a disability and would be permanently retired with an 80 percent (%) disability rating.  On 3 March 2014, the applicant was honorably released from assignment and duty (REFRAD) accordingly.

9.  The NGB 22 (National Guard Bureau Report of Separation and Record of Service) issued the applicant upon her REFRAD show she completed a total of 32 years, 5 months, and 6 days of creditable military service.  It also confirms she held the rank and grade of SGT/E-5.
10.  National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of the ARNG enlisted Soldiers in various functional areas.  It also provides guidance for completion of the NGB Form 22.  The NGB Form 22 is a document that records a member's service in the ARNG. 

* Items 5a and 5b show the rank/grade as recorded on the DA Form 2-1 (Enlisted Qualification Record) at the time of separation
* Item 6 shows the date of rank of the rank held at separation

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist:  revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, UCMJ, or court-martial; or there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

12.  Title 10, U.S. Code, section 1372 (grade on retirement physical disability, members of the Armed Forces), states unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

* the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired
* the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired
* the permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination
* the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms applicant was promoted to SSG/E-6 on 13 April 2007.  However, the record also confirms and she admits she was reduced for misconduct on 28 July 2011, following her punishment pursuant to Section 451-A of the MCMJ.

2.  There is no evidence of record and the applicant did not provide any evidence that shows she was promoted back to SSG subsequent to her reduction to SGT and prior to her placement on the retired list by reason of permanent disability.

3.  Lacking any evidence to show the applicant held the rank of SSG/E-6 at the time of her retirement from active duty or to show she satisfactorily served in this rank during her enlistment, 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)                                         AR20140009395





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ABCMR Record of Proceedings (cont)                                         AR20140009395



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