BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20150019095 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20150019095 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20150019095 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 placement on the Retired List in the rank and grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5. 2. The applicant states: a. He should have been retired at the highest pay grade he satisfactory held because of his mental status. b. He held pay grade E-6 for 13 years and was in an E-7 slot for 3 years. He received many Army Achievement Medals and impact Army Commendation Medals. His battalion commander asked him to take responsibility for Service Battery. He was in charge of 44 personnel, 27 vehicles, and he reduced the upload time for ammunition from 30 hours to 17 hours. c. Based on his honorable service of 18 years, 1 month, and 25 days, he should be advanced to the highest pay grade he satisfactorily held. He wanted to complete 20 years of active Federal service to make his family proud, but was not granted that privilege. d. At the time of his retirement, he didn't know that he was mentally ill and unfit for military service until he acted out. He is not justifying his actions, but he did not know the severity of his condition until he was admitted to a hospital. He was not aware of the process to correct his record until recently, otherwise he would have put in for it a long time ago. 3. The applicant provides: * 10 May 1989 DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * Request for Continuation on Active Duty * 2 June 1989 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * 15 August 1989 DD Form 214 (Certificate of Release or Discharge from Active Duty) * 1 August 2013 Department of Veterans Affairs Rating Decision * 11 October 2013 Combat-Related Special Compensation denial letter * 17 November 2015 letter in support of applicant * 14 September 2016 Grade Determination Review Board letter CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was inducted into the Army of the United States on 17 June 1971. He was promoted on 26 February 1977 to the rank and grade of SSG/E-6 by Orders 56-49 issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK. 3. On 6 June 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 19 May to 23 May 1977. The imposing battalion commander suspended the applicant’s reduction to the rank and pay grade of SGT/E-5 until 31 December 1977. He further directed a forfeiture of $100.00 pay for 2 months. The applicant appealed to the brigade commander. 4. On 22 June 1977, the appeal authority granted the applicant’s appeal in part. The forfeiture of pay was mitigated to $50.00 per months for 2 months. He further directed the applicant’s transfer to another unit. 5. There is no evidence the suspension of reduction was vacated by 31 December 1977. 6. The applicant reenlisted in the Regular Army on 13 June 1978. 7. On 10 October 1979, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty on 13 September 1978 and behaving disrespectfully toward a superior commissioned officer. The battalion commander reduced the applicant to SGT/E-5 and imposed a forfeiture of $350.00 pay per month for 2 months. The applicant appealed this punishment. 8. On 12 October 1979, the appeal authority (brigade commander) granted the applicant’s appeal in part by suspending the forfeiture of pay for 2 months until 15 December 1979. The applicant acknowledged he had seen the action taken concerning his appeal request. 9. On 20 January 1989 the applicant received a letter issued by the Department of the Army (DA), U.S. Army Enlisted Records and Evaluation Center, informing him he had received a DA-imposed bar to reenlistment under the Qualitative Management Program. This letter informed him a Calendar Year 1988 Sergeant First Class Board viewed his record and determined he should be barred from reenlistment. 10. On 25 February 1989 the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for assaulting his first sergeant, a superior noncommissioned officer. The battalion commander directed the applicant's reduction to SGT/E-5, forfeiture of $645.00 pay a month for 2 months with the second month suspended with automatic remittance if not vacated before 24 August 1989, and to perform 45 days extra duty and restriction. The applicant appealed his punishment. His appeal was denied on 2 March 1989. 11. On 15 March 1989 the applicant completed a DA Form 4941 (Statement of Options) indicating he intended to complete his remaining service obligation and would not appeal the bar to reenlistment. He indicated his expiration of term of service was 10 September 1990. 12. The applicant provided his MEB wherein it shows he underwent a medical evaluation on 16 April 1989. Within the narrative summary, a medical doctor noted the applicant's battalion commander referred him to the Community Mental Health Services Clinic following his reaction to being reduced from E-6 to E-5 for assaulting his first sergeant. Based on his reactions in the presence of his commander, he was admitted to the inpatient psychiatry ward for evaluation. The narrative summary also shows: a. He acknowledged that, in addition to the recent assault and resulting NJP, he had several other alcohol-related incidents throughout his career. b. He reported drinking alcohol made him more aggressive and that he regularly drank on the weekends. He denied having any driving infractions such as driving under the influence. c. During his hospitalization, he responded to supportive intervention and began to work somewhat on his (personal) problems including his recent divorce, possible marriage in the near future, and his career difficulties. d. He was seen by the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). He agreed to abstain from alcohol and was started on Antabuse. e. His command had been considering pursuing a chapter 14 discharge (Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)) because of the assault. f. The attending physician diagnosed the applicant as follows: * alcohol-related dementia manifest by impairment in memory, using newly learned information, processing of complex information, abstract reasoning as well as labile affect and accentuation of personality traits * moderate, chronic alcohol abuse; stressors, moderate, of activities of routine duty and daily living and financial and marital problems; impairment for further military duty is severe; impairment for industrial and social adaptability is considerable * adjustment disorder with depressed mood, manifested by tearfulness, dysphoria and hopelessness in response to the probable loss of his career 13. On 10 May 1989, an MEB convened. The DA Form 3947 shows his grade as E-5. The MEB referred him to a PEB for the following conditions on Axis 1 (Clinical Psychiatric Disorders) of the Diagnostic and Statistical Manual of Mental Disorders: * alcohol-related dementia * alcohol abuse * adjustment disorder with depressed mood Of note, there were no personality disorders (Axis II) and no medical diagnoses (Axis III) that could have contributed to his diagnoses on Axis 1. He agreed with the board’s recommendations and findings. 14. On 2 June 1989, a PEB convened and found the applicant physically unfit for continued military service due to alcohol-related dementia. His rating was 30 percent with definite impairment for social and industrial adaptability. His condition was determined to be in the line of duty. The applicant requested continuance on active duty. However, the PEB recommended permanent retirement due to disability. The applicant concurred with the findings and recommendation and waived a formal hearing of his case. 15. On 12 July 1989, the United States Total Army Personnel Command issued permanent disability retirement orders showing the applicant's retired grade as SGT. 16. On 15 August 1989, the applicant was retired due to permanent physical disability. His DD Form 214 shows his rank as SGT, pay grade E-5, and his effective date of pay grade as 25 February 1989. His total active Federal service shows 18 years, 1 month and 25 days. His awards include: * Army Commendation Medal * Army Achievement Medal (5th Award) * Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 3 * Armed Forces Expeditionary Medal (Korea) * Army Good Conduct Medal (5th Award) * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Hand Grenade Bar 17. On 20 September 1989, an Army Grade Determination Review Board (AGDRB) convened and determined the highest grade the applicant satisfactorily held was SGT/E-5 based on his record of indiscipline. The AGDRB noted the applicant was reduced by NJP and that he had served continuously on active duty from 17 June 1971 through 15 August 1989; however, the applicant’s record lacked documentation and/or a microfiche to support all his periods of service. 18. In 1989, the Department of Veterans Affairs (VA) initially granted the applicant disability benefits for a mood disorder with alcohol dependence. In 2010, the VA adjusted his diagnosis to a depressive and cognitive disorder with alcohol dependence in full remission. He is currently rated 70 percent for his mental health condition and also has a noncompensable evaluation for an atrophic right testicle. The VA denied service connection and disability evaluations for seven additional medical conditions including post-traumatic stress disorder and sleep apnea. 19. The applicant's son provided a letter of support, wherein he requests the applicant’s retirement grade be the highest grade the applicant technically held, pay grade E-6. He states the applicant was trapped in a burning building in 1973 while in Korea. The applicant jumped out of the window to save himself and in the process he injured his back. The son identifies the applicant's current medical conditions and medications he is prescribed for those conditions. The applicant was employed as a plumber but was injured on the job and is now unemployed. The applicant receives benefits from the Social Security Administration and receives medical treatment from a VA medical center. The son states the applicant was a loyal Soldier who served more than 18 years of active Federal service and he should be recognized for this service. The son is the applicant’s caretaker and lives with him. 20. An advisory opinion was obtained from an Army Review Boards Agency psychologist on 27 September 2017. The psychologist opined that the available records supported a finding of post-traumatic stress disorder or other boardable behavioral health (BH) condition (in this case alcohol abuse but not alcoholism), that the BH was present at the time of the misconduct, and that it met the standards for separation through medical channels. The advising psychologist found the BH was not a mitigating factor for the misconduct and it was considered during his medical separation processing. There was insufficient evidence of a medical disability or condition supporting a change of rank. 21. A copy of the advisory opinion was forwarded to the applicant for review and comment. He has not responded. REFERENCES: 1. Army Regulation 15-80 (AGDRB) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. The AGDRB reviews cases referred for purposes of Secretarial grade determinations under various statutes. The AGDRB reviews enlisted Soldiers records who are being considered for separation due to physical disability. Generally service in a grade will not be considered to have been satisfactory when reversion to a lower grade was due to misconduct, caused by NJP under the provisions of Article 15 of the UCMJ, or the result of a court-martial conviction. 2. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 contained the standards for enlisted promotions in effect at the time. The Army promotes Soldiers who are qualified. The objectives of the Army promotion systems are to recognize the best qualified Soldier which will attract and retain the highest caliber Soldiers. In the alternative, it will preclude a Soldier who is not productive or not best qualified. Field grade commanders in the rank of lieutenant colonel or higher may promote Soldiers to E-6 that are assigned or temporarily assigned to their unit or installation. Promotions will be announced by orders. For reductions, commanders who have promotion authority for a specific grade also have reduction authority. A Soldier's grade can be reduced under Article 15 of the UCMJ by appropriate promotion authority. For promotion consideration to grade E-6, there is a minimum requirement of 10 months' time in grade. DISCUSSION: 1. As a noncommissioned officer in the rank and pay grade of SSG/E-6, the applicant received NJP under the provisions of Article 15 of the UCMJ. On two occasions, he received a suspended reduction sentence to SGT/E-5. On 25 February 1989, he received a third field grade Article 15 for assaulting his first sergeant. His punishment included a reduction to SGT/E-5. He appealed his punishment and his request was denied. Accordingly, he was reduced. 2. The applicant was found to be medically unfit due to alcohol-related dementia and a PEB determined he should be permanently retired due to physical disability with a combined rating of 30 percent. The PEB rendered its decision on 2 June 1989 and on 15 August 1989 he was medically retired and transferred to the permanent disability retired list in the rank and grade of SGT/E-5. The AGDRB convened and determined the highest grade the applicant had held satisfactorily was SGT/E-5. 3. Service in the highest grade will not be deemed satisfactory if it is determined that the revision to a lower grade was due to misconduct or court-martial or if there is information in the Soldier's service records to indicate clearly that the highest grade was not served in satisfactorily. 4. The advising psychologist found insufficient evidence of a medical disability or condition supporting a change of rank. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019095 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019095 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2