IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150000528 


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 reconsideration of his earlier request for correction of his records to show he retired by reason of disability in the rank/grade of staff sergeant (SSG)/E-6. 

2.  The applicant states:

* he does not believe the Board had all the evidence to make a proper determination of his case
* he performed in the rank of SSG successfully; he challenges anyone to read his records and disagree
* he performed the duties on three different occasions as a sergeant first class (SFC) and he was rated top block and among the best 
* he was awarded the Meritorious Service Medal in that rank and he served 14 years in that rank
* he does not believe one incident means his service in that rank was unsatisfactory specially after he was railroaded 
* one specific act of misconduct may not form the basis for a determination that his service in the grade of E-6 was unsatisfactory 
* a Soldier who is retired for disability will be referred for a grade determination unless entitled to retire in the higher grade 
* he was investigated in August 2010 but not charged until January 2013, just 2 weeks after initiating his medical evaluation board 
* in April 2013 an Article 32 investigating officer (IO) recommend dismissal all the charges 
* he was found innocent of two of the charges and guilty of the one charge of not filling out paperwork for a lateral transfer of supplies which is considered wrongful disposition - not theft 
* he retired honorably and he was placed on the disability retired list after more than 22 years of active service 
* it is now December 2014 (at the time of his application) and the Commanding General has not approved his conviction 
* the whole trial was an attempt to cheat a Soldier out of his retirement 
* one specific act should not determine his honorable service in the rank/grade of SSG/E-6
* an enlisted Soldier being processed for disability retirement, not currently serving in the highest grade held, will be referred for a grade determination board unless entitled to retirement at a higher grade by law (Title 10, U.S. Code, sections 1212 and 1372)

3.  The applicant provides:

* DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) from November 2001 to March 2010 
* Permanent Orders (PO) Number 295-011 awarding him the Meritorious Service Medal
* DD Form 457 (Investigating Officer's Report) 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140003930, on 9 December 2014.

2.  The applicant provides a new argument and a DD Form 457 which were not previously considered.  These are considered new evidence which warrant consideration by the Board. 

3.  The applicant's records show he enlisted in the Regular Army on 8 October 1991 and he held military occupational specialties 13B (Cannon Crewmember) and 92Y (Unit Supply Specialist). 

4.  He served through multiple reenlistments in a variety of stateside or overseas assignments including Iraq and Bosnia and he was promoted to sergeant (SGT)/E-5 on 1 December 1996 and to SSG/E-6 on 1 October 1999.  

5.  He provides a DD Form 457 with allied documents that shows on 27 March 2013, the Commander, 1st Brigade Combat Team, 1st Cavalry Division, Fort Hood, TX, appointed an investigating officer (IO) to conduct an investigation into court-martial charges and misconduct against the applicant.  Specifically, the IO investigated the facts and circumstances of the charges that were preferred against the applicant: 

* Charge I, Article 81:  one specification of conspiring with another Soldier to wrongfully sell military property and on diverse occasions disposing of by giving to the other Soldier military property 
* Charge II, Article 107:  one specification of making a false official statement to an undercover agent of the Federal Bureau of Investigation that he never expected to receive monies in return for military property 
* Charge III, Article 108:  one specification of disposing of by giving to another Soldier military property valued at $240,000

6.  On 24 May 2013, the IO submitted his findings and recommendations.  He found all three charges unfounded.  He stated that he thoroughly investigated all charges and specifications alleged against the applicant and found supporting evidence lacking for continued prosecution of the applicant.  He recommended: 

* dropping all charges against the applicant and requiring him to teach a class to his unit/supply section on property accountability and proper disposition of government property discovered in unit areas
* the applicant’s chain of command should make a determination as to whether to pursue nonjudicial punishment (NJP) or negative counseling for the applicant's borrowing of government property for his own personal use (his admission of taking tools and an air compressor home to work on his personal vehicle) 

7.  On 19 September 2013, the applicant was arraigned at Fort Hood, TX on the three charges and their corresponding specifications at a general court-martial convened by the Commander, 1st Cavalry Division.  The court convicted him of Charge III and its specification of disposing of by giving to another Soldier, without proper authority, thirteen Vector 21 Laser Range Finders, of a total value of about $240,000, military property of the United States.  The court sentenced him to a reprimand, reduction from SSG/E-6 to specialist (SPC)/E-4, forfeiture of $801 pay per month for 6 months, and 60 days of restriction.  

8.  The applicant entered the disability evaluation system and an informal physical evaluation board (PEB) found him unfit and recommended placement on the temporary disability retired list (TDRL).  The informal PEB was approved on 8 January 2014.  

9.  On 13 January 2014, Headquarters, III Corps, Fort Hood, TX, published Orders 013-0159 ordering his retirement effective 28 January 2014 and placement on the TDRL in the retired rank/grade of SPC/E-4 on 29 January 2014.  

10.  He retired on 28 January 2014.  His DD Form 214 shows he retired by reason of temporary disability and he was placed on the TDRL.  It also shows he completed 22 years, 3 months, and 21 days of creditable active service. This form further shows in:

* item 4a (Grade, Rate or Rank) "SPC"
* item 4b (Pay Grade) "E-4"
* item 12i (Effective Date of Pay Grade) "2013-09-26"

11.  On 5 December 2014, the convening authority approved the sentence and ordered it executed.  The convening authority also reprimanded the applicant for disposing of 13 Vector 21 Laser Range Finders by giving them to another Soldier, totaling $240,000.  His actions tarnished the reputation of Soldiers and he failed to set the example expected of a NCO in the U.S. Army.  

12.  On 9 December 2014, following his petition, the Board determined he did not serve satisfactorily in the rank/grade of SSG/E-6 but he did so in the rank/grade of SGT/E-5.  As a result, the Board granted him partial relief by amending his retirement orders and DD Form, 214 to show he was placed on the TDRL in the retired rank/grade of SGT/E-5 vice SPC/E-4. 

13.  He provides PO Number 295-11, dated 22 October 207, showing he was awarded the Meritorious Service Medal for meritorious service while serving in the rank of SSG from 31 October 2006 to 30 January 2008. 

14.  He also provides, and his records contain, multiple NCOERs showing his raters' overall potential rating and senior raters' overall performance and potential ratings for each rating period as follows: 

* 200111-200205:  Among the Best, Successful/1 and Superior/1
* 200206-200304:  Among the Best, Successful/1 and Superior/1
* 200305-200310:  Among the Best, Successful/1 and Superior/1
* 200311-200410:  Fully Capable, Successful/2 and Superior/2
* 200411-200510:  Among the Best, Successful/1 and Superior/1
* 20051101-20061031:  Among the Best, Successful/1 and Superior/1
* 20061101-20071031:  Among the Best, Successful/1 and Superior/1
* 20071101-20080531:  Among the Best, Successful/1 and Superior/1
* 20080601-20000413:  Among the Best, Successful/1 and Superior/1
* 20090414-20100329:  Among the Best, Successful/1 and Superior/1
* 20100330-20110329:  Marginal, Fair/4 and Fair/4 (failed weight standards)
* 20110330-20120329:  Fully Capable, Fair/4 and Fair/4 (failed weight standards)
* 20120330-20130329:  Fully Capable, Fair/4 and Fair/4 (failed weight standards)

15.  Army Regulation 600-8-19 (Enlisted Promotion and Reduction) provides for the promotion and reduction of enlisted Soldiers.  Paragraph 1-20(c) states per the provisions of Title 10, U.S. Code, section 1372, Soldiers who are on a promotion list at the time of retirement for disability will be retired at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list. 

16.  Title 10, U.S. Code, section 1372 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 shows the applicant was promoted to SSG/E-6 on 1 December 1996.  However, a court-martial conviction reduced him to the rank/grade of SPC/E-4 on 26 September 2013.  The applicant is correct in stating that he was promoted to SSG and performed in this grade from 1996 to 2013.  However, the record shows he did not do so satisfactorily.  While he contends the IO did not recommend court-martial charges be preferred against him, the record shows that the general court-martial convening authority did not accept the IO recommendation.  He was tried and convicted of at least one specification of violating the Uniform Code of Military Justice.  Thus, by this conviction his service as an SSG was rendered unsatisfactory regardless of the numerous favorable NCOERs and awards received throughout his tenure in the service.  It is also noted he had marginal NCOERs as an SSG due to failure to comply with the Army Weight Control Program. 

2.  By law, a Soldier whose name is placed on the TDRL is entitled to 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.  Because the applicant did not serve satisfactorily in the rank/grade of SSG/E-6 as evidenced by his court-martial conviction which reduced him for misconduct, he was ineligible to be placed on the TDRL (or the permanent disability list) in the rank/grade of SSG/E-6. 

3.  The applicant is correct in that his case should have been forwarded to the Army Grade Determination Review Board (AGDRB).  The AGDRB determines the highest grade in which a Soldier served satisfactorily.  A "satisfactory" determination of service at a particular grade has pay implications in three types of cases:

* Advancement on the retired list for enlisted Soldiers and warrant officers who previously held a higher grade after 30 years combined service on the active duty and retired lists 
* Retiring officers above the grade of warrant officer who have been the subject of adverse information since their last promotion
* Disability separations and retirements 

4.  A Soldier separating for a physical disability receives severance or retired pay based on the highest of (1) the pay grade at time of separation, (2) the highest grade satisfactorily served, or (3) the grade to which the Soldier had been approved for promotion.  If the Soldier is not serving in his or her highest grade or on an approved promotion list to what would have been the highest grade, the Physical Disability Agency forwards the disability case to the AGDRB for a determination of whether the Soldier served satisfactorily at a higher grade.

5.  Additionally, when a Soldier is medically retired or separated in a lower grade without the benefit of a review by the AGDRB, then the Soldier can apply for correction of military records to the ABCMR.  The ABCMR has jurisdiction to correct errors or injustices, and can act in place of the AGDRB in these cases.  The applicant previously applied to the ABCMR.  

6.  In its adjudication of his case, the ABCMR determined that although he was reduced two grades on 26 September 2013, there was no evidence showing he did not perform satisfactorily as a SGT/E-5.  The Board correctly determined his service was satisfactory in the rank/grade of SGT/E-5.  As such, his retirement orders and DD Form 214 were amended to show he was placed on the TDRL in the rank/grade of SGT/E-5 with an effective date of 28 January 2014, the date he retired by reason of disability. 

7.  A review of his record, his supporting evidence and regulatory guidance shows there is no error or injustice in his retired rank/grade of SGT/E-5.  It is the highest rank/grade in which he served satisfactorily.  Therefore, there is insufficient evidence to grant him the 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 to amend the decision of the ABCMR set forth in Docket Number AR20140003930, on 9 December 2014.



      _______ _   __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)                                         AR20150000528





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ABCMR Record of Proceedings (cont)                                         AR20150000528



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