IN THE CASE OF:	   

		BOARD DATE:	  21 JULY 2015

		DOCKET NUMBER:  AR20140018865 

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 to be advanced on the retired list to the highest rank he satisfactorily held in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.

2.  He states:

* he served in the Arkansas Army National Guard (ARARNG) as a 13F (Forward Observer) and was a 91B (Light Wheeled Vehicle Mechanic) while in the U.S Army  
* he was reduced in rank in 1999, 2000, and 2001 due to immaturity, while with the ARARNG
* he served on active duty from 24 March 2002 until 6 October 2014
* while on active duty, he failed two urinalysis tests.  For both offenses, he was relieved of his duty, reduced in rank, served 45 days of extra duty, and forfeited part of his salary
* since failing the last urinalysis, he has completed the Army Substance Abuse Program (ASAP), commenced the Residential Treatment Facility (RTF) at Dwight D. Eisenhower Army Medical Center, and attended a twelve-step program on a regular basis  
* he has been clean since 24 June 2013 via the ASAP, Narcotics Anonymous, his sponsor, and the RTF program
* he held the rank/pay grade of SSG/E-6 for 6 years and 6 months, which was his highest grade.  He was demoted to SGT/E-5 nine months prior to his retirement and he's receiving E-5 retirement pay.  



3.  He provides:

* a self-authored letter
* a character reference letter
* letters in support of his application from a psychiatrist and a clinical director

CONSIDERATION OF EVIDENCE:

1.  On 16 January 1998, the applicant enlisted in the ARARNG.  On 12 August 2002, he was honorably released from the ARARNG.  During his service with the ARARNG, he was reduced in rank in 1999, 2000, and 2001 for inefficiency.  There is no record of nonjudical punishments (NJP's) under Article 15 of the Uniform Code of Military Justice (UCMJ) with the ARARNG filed in his official military personnel file (OMPF).

2.  On 13 August 2002, he enlisted in the Regular Army (RA) and after initial training he was awarded MOS 91B. 

3.  The applicant deployed to Iraq in 2003-2004 where he was awarded the Combat Action Badge for actively engaging with the enemy on 17 December 2003.  He deployed to Iraq for a second tour in 2004 and returned to Fort Bragg, NC, on 26 March 2005.  On 1 May 2005, he was promoted to SGT/E-5.  

4.  On 17 October 2005, he received NJP for the illegal use of a controlled substance (cocaine).  He was reduced in rank to specialist/E-4 and retained in service.  

5.  The applicant deployed to Iraq for a third tour in 2006 to 2007.  He was again promoted to SGT/E-5 on 1 June 2006 and to SSG/E-6 on 1 November 2008.

6  He deployed to Iraq for a fourth tour from 2009 to 2010 and to Afghanistan in 2012.  However, upon his return on 20 June 2013 he received NJP under Article 15 for the illegal use of a controlled substance (cocaine).  His punishment included a reduction in rank to SGT/E-5.

7.  On 16 September 2013, an Integrated Disability Evaluation System (IDES) determined the applicant had post-traumatic stress disorder (PTSD) which developed during his first deployment to Iraq in 2003.  He received psychotherapy and received various medications which provided minimal relief.  

8.  In December 2013, the applicant was initially processed for separation in accordance to Army Regulation 635-200 due to drug abuse. 
9.  On 27 December 2013, a medical evaluation board determined that although he could be processed for separation in accordance with Army Regulation 635-200, due to drug abuse, his medical condition was the direct result or substantial contributing cause of the conduct that led to the recommendation for administrative separation.  However, it was recommended that, if found unfit, he be discharged with a characterization of service of a general since his service was not been sufficiently meritorious to warrant an honorable characterization.  

10.  On 21 May 2014, a formal Physical Evaluation Board (PEB) was held and found the applicant physically unfit for further service, recommended a combined rating of 80 percent, and placement on the temporary disabled retired list (TDRL) due to PTSD, lumbar degenerative disc disease, and cervical intervertebral disc syndrome.  At his PEB, he testified under oath that he did not seek treatment for his PTSD until 2013 because he had been self medicating with alcohol over the years.  

11.  On 5 June 2014, the applicant requested to be medically retired at the highest grade held of SSG/E-6 because he was self medicating due to a lack of proper medical care.  

12.  On 4 August 2014, the Army Grade Determination Review Board convened under the provisions of Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations).  On 21 August 2014, after a review of his official OMPF, and his PEB proceedings, the Board determined that his highest grade satisfactorily held was SGT/E-5 due to his multiple NJP's and use of cocaine.

13.  On 6 October 2014, he was placed on the TDRL with an honorable characterization of service in the rank/pay grade of SGT/E-5.  The statute authorizing his retirement is Title 10, U.S. Code, section 1202 with other eligible laws shown as Title 10, U.S. Code, section 1372.

14.  The applicant provides letters of support from a psychiatrist, a clinical director, and supervisor who stated that he is a man with notable qualities, personal character and dedicated to his family.  He sustained traumatic brain injuries and suffers from severe chronic PTSD.  He remains profoundly impaired but is also a dedicated warrior who has given much to the military.  He has been totally compliant with his entire treatment plan and has worked with a multidisciplinary team of providers with determination and passion.  In addition, he has successfully completed the RTF program and was given a diagnosis of alcohol dependence, cocaine abuse, and cannabis dependence which is in remission; has reported no relapses; and has been negative in all random drug and alcohol test results.  
15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

16.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted Soldier on whom elimination action might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMCA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

17.  Title 10, U.S Code, section 1372 – Grade on retirement for physical disability:  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:

   a.  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. 
   
   b.  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. 
   
   c.  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. 
   
   d.  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.  As a member of the ARARNG, the applicant was promoted and then reduced in rank for inefficiency.  The highest rank he attained in the ARARNG was SPC/E-4.  Upon discharge from the ARARNG, he immediately enlisted in the Regular Army.   

2.  While on active duty, he completed five combat tours in Iraq and in Afghanistan.  The following favorable and unfavorable personnel actions are recorded in his OMPF:

* awarded the Combat Action Badge in 2003 
* promoted to SGT/E-5 in March 2005
* received NJP in October 2005 for the illegal use of cocaine and among other punishments he was reduced in rank to SPC/E-4
* promoted to SGT/E-5 on 1 June 2006
* promoted to SSG/E-6 on 1 November 2008
* reduced to SGT/E-5 on 20 June 2013 as a result of NJP for cocaine use (second offense) 

4.  In May 2014, the applicant was diagnosed with PTSD based on his multiple combat deployments as evidenced by award of the Combat Action Badge.  A PEB recommended his placement on the TDRL in his current rank of SGT/E-5, due to being unfit for further military service with a combined disability rating of 80 percent.  

5.  The applicant requested to be retired at the highest grade held of SSG/E-6 since he believed his misconduct was due to his PTSD which led to his self-medicating and ultimately his punishments and subsequent reduction in grade.

6.  The Army Grade Determination Review Board denied his request to retire as an SSG/E-6 due to his repeated use of cocaine.   

7.  The applicant was allowed to remain in the military in spite of testing positive for cocaine in 2005.  He was twice selected for promotion to SGT and attained the rank of SSG/E-6.  He received a second NJP for cocaine use in 2013 after his fifth combat deployment.  He offers letters of reference and medical documentation stating that his PTSD contributed to his misconduct and that he is in remission for his drug and alcohol abuse disorders.  

8.  The applicant's overall service record was carefully reviewed and it is acknowledged that in a 10 year period he served five combat tours and was awarded the Combat Action Badge.  From his first documented drug offense to his second there is an eight year period where is appears he did not request medical assistance with either his drug or alcohol use disorders.  He admits he was using both drugs and alcohol to self-medicate.  It was during the processing of his separation physical that medical personnel determined he had PTSD.  In the final processing of his proposed medical retirement, the Army Grade Determination Review Board acting on behalf of the Secretary of the Army determined the highest grade the applicant successfully served at was SGT/E-5.  He was retired and placed on the TDRL in the rank and pay grade of SGT/E-5.  

9.  He was an SSG/E-6 at the time of his second offense.  As a noncommissioned officer he was well aware of the consequences of his actions as well as the medical treatment available to him.  Therefore, an upgrade to SSG/E-6 is not recommended based on his overall quality of service that was diminished by his own misconduct. 

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)                                         AR20140010952



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ABCMR Record of Proceedings (cont)                                         AR20140018865



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