IN THE CASE OF:  	  

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20140016979 


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 the highest grade in which he satisfactorily served for the purpose of computation of disability retirement pay be determined to be sergeant (SGT)/pay grade E-5.

2.  The applicant states:

     a.  The reason for his rank reduction was due to an incident that occurred on 15 March 2015 [sic, 15 March 2014] when he was in a car that was pulled over for speeding.  During the traffic stop, the officer asked each passenger to step out of the car.  When the officer asked him to step out of the car, he was asked if he had any weapons on his person and he admitted he had a knife.  The officer explained that in the State of Alaska switchblades and gravity knives are legal; however, one still had to announce that one had one.  He knew he had to do that with concealed firearms, but did not know that was the same for switchblades and gravity knives.  At that time, the officer told him he was detaining him for his [the officer's] safety and that he was not under arrest. 

     b.  Once he was detained, the officer asked him if anything else in the car belonged to him.  He told the officer the only thing in the car that belonged to him was the knife.  He had no clue what was in the trunk or the rest of the car.  After the car was searched, all passengers were placed under arrest.  He was charged with misconduct with a weapon to the 5th degree.  The other passengers were arrested for items that were found during the car search and that he had no clue what they were.  Once he was arrested and posted his bail, he contacted his platoon sergeant and told him what happened. 
     c.  That evening his commander contacted him asking what had happened so he could do the serious incidence report (SIR).  He told him why he was arrested and when he asked him why the other people in the car were arrested he told his commander he did not know because he did not know what the specific charges were or what was found in the car.  On 17 April 2014, his commander questioned him again.  He restated to his commander the reason for his arrest.  At that time he was asked if there was anything else he wanted to add and he said no. 

     d.  After his statement, his first sergeant went to his office and grabbed a newspaper article.  The article reported everyone that was involved in the traffic stop.  His commander asked him why he did not tell them about what was found in the car or why the other people were arrested.  He stated he did not know what they were specifically charged with or what was found.

    e.  His commander said he lied to him and charged him with two counts of making a false official statement and lying to a commissioned officer.  During his Article 15 hearing, he explained his story to his squadron commander and showed him a copy of his legal paperwork.  Despite his best efforts to explain himself, his squadron commander sided with the troop commander and first sergeant and reduced him in rank to specialist four (SP4).  He never lied to his commander and he has a copy of his legal paperwork and a copy of the Article 15.  He was a SGT for 5 years and had never been in trouble until he lost his rank on 28 April 2014.

3.  The applicant provides a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) and State of Alaska court documents. 

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the U.S. Marine Corps and the Army National Guard, the applicant enlisted in the Regular Army on 2 January 2008.  

2.  On 14 March 2014, the applicant pled guilty to concealment of a weapon in the Fourth Judicial District at Fairbanks in the State of Alaska.  

3.  A DA Form 4856 (Developmental Counseling Form) dated 17 April 2014, shows he was counseled for lying to a commissioned officer and to a noncommissioned officer.  

4.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) shows all favorable actions were suspended due to his adverse action on 17 April 2014.

5.  On 28 April 2014, he accepted nonjudicial punishment (NJP) for making false statements to a commissioned officer on or about 17 March 2014 and again on 17 April 2014.  The imposing official directed the filing of the NJP in the applicant's performance section of his official military personnel file (OMPF).

6.  His punishment consisted of:

* reduction to pay grade E-4
* forfeiture of $1,213 pay per month for 2 months
* extra duty for 45 days
* restriction for 45 days
 
7.  On 27 November 2014, he was retired and placed on the Temporary Disability Retired List (TDRL) on 28 November 2014.  

	a.  His DD Form 214 shows his rank and pay grade as specialist (SPC)/E-4).  

	b.  His orders for placement on the TDRL show his retired rank as SPC.
  
8.  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 Uniform Code of Military Justice; 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. 

9.  Title 10 of the United States 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.  The applicant was reduced by competent authority from SGT/E-5 to SPC/E-4 for violations of the Uniform Code of Military Justice prior to being placed on the TDRL.  

2.  A Soldier being retired for physical disability is entitled to a grade equivalent to the highest grade in which he served satisfactorily (emphasis added).  He received NJP while serving as a SGT and the imposing commander reduced him to SPC.  Therefore, the applicant's service as a SGT is considered unsatisfactory.

3.  Based on the applicant's reduction for misconduct, the highest grade in which he served satisfactorily for the purpose of computation of disability retirement pay is the grade he held on the date of his separation.

4.  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)                                         AR20140016979



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ABCMR Record of Proceedings (cont)                                         AR20140016979



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