IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140010831 


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 he be retired and placed on the Temporary Disability Retired List (TDRL) at the highest rank he obtained in service.

2.  The applicant states there is no evidence of nonjudicial punishment (NJP) in his records.

3.  The applicant provides:

* a memorandum, dated 6 May 2014, from the Army Board for Correction of Military Records (ABCMR) 
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 November 2008 

CONSIDERATION OF EVIDENCE:

1.  He previously completed 12 years, 10 months, and 7 days of active service in the U.S. Marine Corps.  He was discharged on 30 November 2008 in the rank of sergeant (SGT)/pay grade E-5.

2.  On 1 December 2008, he enlisted in the Regular Army for 4 years in pay grade E-5.

3.  On 17 May 2011, a formal Physical Evaluation Board (PEB) found him fit for duty for lumbar degenerative arthritis and post-traumatic stress disorder (PTSD) and major depressive disorder.  On 7 June 2011, the U.S. Army Physical Disability Agency (USAPDA) approved the findings of the PEB.

4.  A DA Form 2627 (Record Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) shows that on 14 September 2011 his commander, a lieutenant colonel, found him guilty of:

* violating a lawful general regulation by wrongfully allowing a SGT to operate a motorcycle without the completion of the basic riders course
* violating a lawful general regulation by allowing a SGT to operate a motorcycle without wearing the appropriate personal protective equipment

5.  His commander did not direct the DA Form 2627 be filed in either the performance section or the restricted section of his official military personnel file (OMPF).  The applicant appealed and submitted four sworn statements.  The exact punishment awarded and the results of the appeal are not shown on the DA Form 2627.

6.  On 26 June 2012, an informal PEB found the applicant unfit for duty for PTSD with depressive disorder and assigned him a 50 percent disability rating.  The PEB recommended he be placed on the TDRL with a reevaluation within 
6 months of his separation from service.  The applicant was identified as a specialist (SPC)/pay grade E-4 on the DA Form 199 (Informal PEB Proceedings).

7.  On 28 August 2012, the USAPDA requested the Army Grade Determination Review Board (AGDRB) review the applicant's case for determination of the highest grade satisfactorily served for the purpose of computation of retirement or separation pay.  The following information was provided:

* current grade: E-4.  Highest grade previously held:  E-5
* cause for reduction:  He received an Article 15 on 14 September 2011

8.  On 9 October 2012, the AGDRB determined the highest grade in which the applicant served satisfactorily for the purpose of computation of disability retirement/separation pay was his grade on the date of separation.

9.  On 30 October 2012, he was retired and placed on the TDRL the following day with a 50 percent disability rating.  His DD Form 214 with a separation date of 30 October 2012 shows his rank and grade as SPC/pay grade E-4 with a date of rank of 14 September 2011.  His orders for placement on the TDRL show his retired grade as SPC.


10.  His Enlisted Record Brief (ERB) shows his date of rank for SPC is 
14 September 2011.

11.  Army Regulation 15-80 (Army Grade Determination Review Board (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 nonjudicial punishment 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 of the U.S. Code, section 1372 provides the legal authority for the grade 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; 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.  His date of rank for SPC on his ERB and DD Form 214 coincide with the date of his NJP dated 14 September 2011.  USAPDA indicated his current grade was E-4 and his highest grade was E-5.  The reason for the reduction was NJP on 
14 September 2011.  Therefore, there is sufficient evidence to show the applicant received a reduction in rank from SGT to SPC as a result of his NJP on 
14 September 2011.

2.  A Soldier being retired for physical disability is entitled to a grade equivalent to the highest grade in which he served satisfactorily.  The applicant received NJP while serving as a SGT and was reduced to SPC.  Therefore, his service as a SGT was considered unsatisfactory.
3.  In view of the above, there is no basis to change his pay grade at the time of his retirement and placement on the TDRL.

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)                                         AR20140010831



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ABCMR Record of Proceedings (cont)                                         AR20140010831



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