IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150007187 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 restoration of his rank to staff sergeant (SSG)/E-6, the highest grade held during his physical evaluation board (PEB) process. 2. The applicant states, in effect, the Army Grade Determination Review Board (AGDRB) should advance him on the retired list to the grade of SSG due to his outstanding and honorable service since the time of his reduction. He spent half his career in the military as a noncommissioned officer (NCO). His reduction occurred during his medical board while he was in treatment. He respectfully asks to be retired from the Army in the rank of SSG. He believes it would be fitting to end his career as an NCO instead of as a specialist (SPC)/pay grade E-4 because he was seeking treatment for his disabilities. 3. The applicant provides his PEB proceedings, DD Form 214 (Certificate of Release or Discharge from Active Duty), promotion orders, and NCO evaluation reports. CONSIDERATION OF EVIDENCE: 1. On 19 October 2006, the applicant enlisted in the Regular Army. After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman). He was promoted to SSG effective 1 August 2012. His record shows he served in Afghanistan in 2009 and 2012. 2. A DA Form 3975 (Military Police (MP) Report), dated 27 August 2012, shows the applicant was arrested for operating a motor vehicle while under the influence of alcohol and speeding on 26 August 2012. State Police determined that his breath alcohol content was 0.191, which is above the legal limit. He was issued a citation and a suspension of driving privileges memorandum. 3. On 30 November 2012, he received a General Officer Memorandum of Reprimand (GOMOR) for driving while impaired. He attended all appointments in the Army Substance Abuse Program. The GOMOR was permanently filed in his official military personnel record. 4. His enlisted record brief shows his date of rank to sergeant (SGT)/E-5 as 19 December 2012. 5. On 10 October 2013, he was flagged for drug abuse adverse action. He had tested positive for marijuana use. 6. On 12 November 2013, he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of marijuana. The NJP further shows: * he did not demand trial by court-martial * he requested a closed hearing * he did not present matters in his defense 7. His punishment included reduction from SGT to SPC; a forfeiture of $1,201 pay for 2 months, suspended; and 45 days of extra duty. 8. On 31 May 2014, he was retired by reason of temporary disability in the rank of SPC/E-4 and credited with 7 years, 7 months, and 12 days of net active service. 9. On 25 September 2015, PEB found the applicant was found physically unfit and recommended a 70 percent disability rating with a permanent disability retirement. 10. On 30 September 2015, the applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing. 11. On 27 October 2015, the U.S. Army Physical Disability Agency (USAPDA) published Order D300-62 which directed the applicant's removal from the temporary disability retired list (TDRL) and placement on the Retired List with a 70 percent disability rating. 12. In support of his request he provides: a. A Service School Academic Evaluation Report (AER) for the Warrior Leader Course from 21 June through 8 July 2010. b. His evaluation reports for the periods: * 1 September 2010 through 5 June 2011 * 5 June 2011 through 4 June 2012 c. An AER for the Advanced Leader Course from 4 June through 28 June 2012. 13. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), provides the authority for the separation of Soldiers from the Active Army. Chapter 12 (Retirement), paragraph 12-3 (General Provisions of Laws Governing Retirement), states retirement will be in the Regular or Reserve grade the member holds on the date of retirement in accordance with Title 10, U.S. Code, section 3961. 14. Title 10, USC, 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; 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 was reduced by competent authority from SGT/E-5 to SPC/E-4 for violations of the UCMJ prior to being placed on the TDRL. 2. In the absence of evidence showing otherwise, it must be presumed that he was reduced in accordance with the governing regulations and his rights were protected during the action that led to his reductions. The available records provide an insufficient basis for setting aside the NJP and restoring his pay grade to E-6. 3. A Soldier being retired for physical disability is entitled to a grade equivalent to the highest grade in which he served satisfactorily. He was demoted from SSG and received NJP while serving as a SGT and the imposing commander reduced him to SPC. Therefore, the applicant's service as a SSG is considered unsatisfactory. 4. Based on the available evidence, 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 separation. 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) AR20150007187 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007187 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1