BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140010136 


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, the highest rank/grade he held. 

2.  The applicant states that leaders can't control everything; they can only adapt to situations in which they have one of two options, to fail or succeed.  On a professional level he fought valiantly to get Soldiers home to their families through his numerous deployments.  He remained technically and tactically proficient based on the Army values and the Noncommissioned Officer (NCO) Creed.  Thus, leading to no casualties and advancing the Army cycle of professional leadership.  He earned the respect of his Soldiers by training to lead and leading to train and not just demanding it.  His NCO Evaluation Reports (NCOER) prove he was a good leader.  He went above and beyond, not only for the Army or himself, but for the Army's future NCOs, his Soldiers. 

3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 207-024
* Order 296-03
* 2 DA Forms 2166-8 (NCOER)
* Permanent Orders 063-02
* Orders 091-0263
* 4 pages of Medical Evaluation Board paperwork
* 21-pages of medical documentation
* DA Form 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 February 2004.  He completed training and he was awarded military occupational specialty           25U (Signal Support Systems Specialist).  

2.  Although not available for review with this case, it appears that on 
15 February 2012 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  It also appears his punishment consisted of at least a reduction to SPC/E-4.  

3.  His record contains:

   a.  A General Court-Martial Convening Authority Memorandum of Reprimand, dated February 2012, which reprimanded the applicant for driving under the influence.

   b.  An Enlisted Record Brief, dated 13 November 2012, that shows the applicant's rank/grade was reduced from SGT/E-5 to specialist (SPC)/E-4 on      15 February 2012.

4.  On 18 June 2013, he was honorably retired due to permanent disability in the rank/grade of private (PV1)/E-1.  The DD Form 214 he was issued shows the effective date of his pay grade as 13 May 2013.

5.  The applicant provides a self-authored statement to the Army Grade Determination Review Board (AGDRB), dated 26 March 2014, in which he states:

   a.  Although he was medically retired on 18 June 2013, in the rank/grade of   PV1/E-1, he previously held the rank/grade of SGT/E-5.  He believes he should be advanced on the retired list to the rank/grade of SGT/E-5 because after being reduced in rank from SGT to SPC due to receiving an Article 15 on 15 February 2012, he was never given the privilege of being in front of a promotion board again.

   b.  The opportunity to become promotable was declined by denying him the means of taking an alternate Army Physical Fitness Test for the promotion board every month after becoming eligible for promotion while he was on profile.  As of September 2012, and every month after, his name had been circled "yes" on the monthly promotion roster and he was on the automatic promotion list.  With his reduction in rank, his daily mission functionality and responsibilities never changed.  He was still the 2nd Battalion, 504th Parachute Infantry Regiment Automations NCO.  Even with his outstanding daily performance, he had never received any formal monthly performance counseling informing him as to why he was not appearing before the promotion board.

   c.  He was wrongfully reduced in rank/grade from SPC/E-4 to PV1/E-1 after receiving his final Article 15 on 13 May 2013.  He started his leave on 2 April 2013, which was also the day of a urinalysis.  This was caused due to his leave form being left unsigned at the close of business on 29 March 2013.  He was supposed to start leave on 30 March 2013.  He took the week prior to make any and all necessary corrections for his granted 20 days permissive temporary duty (PTDY) and 60 days terminal leave.  He came in the day his leave was supposed to be granted to sign out, as instructed by his first sergeant, only to find his leave form was not present.

   d.  After finally signing out on 2 April 2013, and returning to his home of record for his PTDY, he was called back to his unit on 23 April 2013.  They stated he had failed the urinalysis on 2 April 2013 and that he was supposed to report back to his unit.  The day of the final reading of his Article 15 on 13 May 2013, he informed the punishing officer that at the time he was only taking his prescribed medications such as Flexeril, Percocet, and Celebrex.

   e.  After 9 years of dedicated service, 26 months of deployments, a failed marriage with kids, and medical issues the rest of his life, he finds it proper that he received an honorable discharge and rather demeaning that he was medically retired in the rank/grade of PV1/E-1.  Out of 3,305 days of active duty, 784 days were deployed, 36 of those days were as a PV1/E-1, which is .92 percent of his career.

   f.  Professionally, as an NCO he was an outstanding leader of Soldiers and a stellar performer in all environments.  He was unmatched, needed no supervision, worked above and beyond his pay grade and worked outside his job title.  Through that, he also produced Soldiers who are well-rounded, of great quality and future outstanding leaders.  To this day, his Soldiers still thank him for his dedication to them and to their rising careers.  He asks the Board to consider that he held the rank/grade of SGT/E-5 satisfactorily on the professional side and to leave out his personal side in the decision making process.

6.  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.

7.  Title 10, U.S. Code, section 1372 provides the legal authority for grades to be awarded to members retiring for physical disability.  It states 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 he was retired in the rank/grade of SGT/E-5, the highest grade he satisfactorily held.
 
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.  It appears 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; in this case, the rank/grade of PV1/E-1.

4.  In view of the foregoing, there is insufficient evidence to support 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)                                         AR20140010136





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ABCMR Record of Proceedings (cont)                                         AR20140010136



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