IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20140015857 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, in effect: a. the Article 15, dated 15 February 2012, reducing him from a promotable sergeant (SGT)/E-5 (P) to specialist (SPC)/E-4 be set aside; b. retroactive promotion to staff sergeant (SSG)/E-6, effective March 2012, the date he would have been promoted if not medically retired due to disability for post-concussive syndrome; and c. advancement on the retired list to the rank/pay grade of SSG/E-6. 2. The applicant, with assistance from his former medical evaluation board (MEB) attorney, states: a. But for his post-concussive syndrome for which he was medically retired, he would not have been reduced in grade from SGT (P) to SPC, and he would have been promoted to SSG in March 2012. b. After his reduction to SPC due to his post-concussive syndrome, his unit put him into a position of trust processing flags in the S-1 (Personnel) and mentoring Soldiers who had come from Advanced Individual Training. In this position he had access to various databases with sensitive personnel information, such as the electronic Military Personnel Office (eMILPO). c. The administrative irregularities that occurred with respect to determining his grade at retirement call into question the grade determination decision that was made to retire him at the grade of SPC rather than at SSG. The fact that his retirement orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) say that he was medically retired at the grade of SGT (because he was on a promotion list to SGT) does not negate the fact that the grade determination decision should have been to retire him, not as a SPC, but at least as a SGT (P) (meaning E-6 at retirement) or, more appropriately, as a SSG retroactive to March 2012. d. There were also irregularities surrounding the Article 15 itself that led to the reduction which was then used as the basis for retiring him as a SPC (later partially corrected to SGT). 3. The applicant provides a 5-page memorandum with exhibits containing: * chronology * character references * DA Form 4126-R (Bar To Reenlistment) * DD Form 4856 (Developmental Counseling Form) * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) * Promotion Board Proceedings, Recommendations, Cut Off Scores, and Orders * DD Form 3340-R (Request for Reenlistment or Extension in the Regular Army) * DD Form 4/1 (Enlistment Reenlistment Document-Armed Forces of the United States) * MEB and Physical Evaluation Board (PEB) Proceedings with allied documents CONSIDERATION OF EVIDENCE: 1. The applicant's records show he enlisted in the Regular Army on 21 May 2002 and held military occupational specialty (MOS) 56M (Chaplain Assistant). He served in Iraq from 30 January to 13 November 2008 and in Afghanistan from 13 February 2010 to 7 February 2011. 2. His Enlisted Record Brief (ERB) shows he was promoted to SGT/E-5 on 1 December 2006. He provided documents which show he was recommended for promotion to SSG on 8 August 2007. 3. A review of his official military personnel file (OMPF) shows that while deployed to Iraq the applicant received a Noncommissioned Officer Evaluation Report (NCOER) for the rating period 18 April 2009 through 17 April 2010. This report contains the following negative comments: * demonstrated a lack of integrity by knowingly providing erroneous information on several occasions * was counseled four times for providing erroneous information to chaplain * do not recommend for promotion at this time * demonstrated a lack of integrity which is uncharacteristic for an NCO 4. On 20 August 2010, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties (failed to get slides for staff update) from on or about 5 July 2010 to on or about 13 July 2010. His punishment included forfeiture of $322.00 (suspended) and 14 days of extra duty. 5. Despite his record of indiscipline the applicant's unit commander reenlisted him in the Regular Army for 4 years in the pay grade of E-5 (SGT) on 8 December 2011. This was his third reenlistment. 6. A DA Form 268 shows his favorable personnel actions were suspended due to adverse action on 5 January 2012. He was also barred from reenlistment on 18 January 2012 based on a continuous lack of effort toward his duties as an NCO and a leader, failure to follow orders, and conduct unbecoming of an NCO. 7. On 15 February 2012, he accepted NJP for making a false statement to a commissioned officer on or about 18 November 2011. He elected not to appeal this action and his punishment consisted of: * reduction to SPC/E-4 * forfeiture of $100 pay per month for 2 months (suspended) * extra duty for 45 days (suspended) 8. The applicant provides: a. A Recommended List for Promotion of Enlisted Personnel, dated 11 April 2013, which shows he was recommended for promotion to pay grade SGT/E-5 in the primary zone. b. A memorandum from his MEB counsel, dated 17 April 2013, requesting the applicant's MEB take precedence over his administrative discharge proceedings. His counsel stated that the applicant failed to meet medical retention standards due to post-concussive syndrome due to traumatic brain injury (TBI) which occurred after a loss of consciousness when he hit his head on a concrete bunker while deployed to Afghanistan. The applicant had gone through an administrative discharge board over a year ago and it was unclear whether the results of that board were valid because the paperwork was lost. Since that time the applicant had been treated for his medical condition and was performing the duties of the S-1 NCO with no further disciplinary or administrative actions pending against him. Counsel further contended that considering that the applicant's condition was undiagnosed for almost two years, common sense suggested that his medically unacceptable post-concussive syndrome based on the TBI was likely to have substantially contributed to his poor duty performance and misconduct which was the reason the administrative discharge proceedings were initiated. Counsel stated, "If the administrative discharge proceedings are abated, then the case proceeds to the Physical Evaluation Board (PEB) at Fort Sam Houston for further disability processing." c. The above memorandum is accompanied by several letters of support, one written by his a military physician at the Warrior Recovery and Resiliency Center, Fort Campbell, KY. This official stated that the applicant had completed treatment and was found to have significant cognitive impairments. A second memorandum, written by his case manager at the Lapointe Health Clinic, Fort Campbell, KY, stated that the applicant was being treated for TBI for post-concussive symptoms. The applicant had informed this official that he was pending a punitive separation for not following orders and lying to a superior. The applicant stated that he did not willfully lie but now admitted that he could not remember the circumstances. The case worker indicated he was forthcoming during their interaction but somewhat dazed and disorganized as he struggled to recall and describe his injury that led to the present disciplinary actions. She (the official) was convinced that he was demonstrating potential signs and symptoms of post-concussive syndrome. She contacted the brigade combat team surgeon and requested further evaluation of the applicant. d. A memorandum approving the applicant's request to terminate the pending separation action pursuant to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c (commission of a serious offense), and directing his processing through the Physical Disability Evaluation System (PDES). The approval authority was a brigadier general. e. His MEB and PEB proceedings that found he was physically unfit due to his anxiety disorder with organic sleep disorder and post-concussive syndrome (TBI July 2010 in Afghanistan). The PEB recommended a 70-percent disability rating and a permanent disability retirement. Specifically, his blackouts, anxiety, depressed mood, and irritability precluded him from performing one or more Common Soldier Tasks and prevented him from functioning in his current assignment. f. A chronology recounting the events between the applicant's TBI incident and his subsequent medical retirement. Of note is the contention that neither the U.S. Army Physical Disability Agency (USAPDA) nor the Army Grade Determination Review Board (AGDRB) actually reviewed the Article 15 leading to the reduction which was the sole basis for his E-4 grade determination. Not taking into account the applicant's TBI was an important omission because Title 10, U.S. Code (USC), Section 1372, provides that service members retired for disability are entitled to the grade to which they would have been promoted had it not been for the physical disability for which retired. His counsel argues that the applicant would have been retired as a SSG but for his post-concussive syndrome which cased his reduction from SGT (P) to SPC. g. This same document states that in October 2012 the applicant performed the duties of the S-1 NCO, a position of integrity. He was able to perform this responsible work, even with TBI residuals, because he could concentrate on one task and not have to deal with other stressors in the workplace. His duties and responsibilities increased from October 2012 until his medical retirement in December 2013. The applicant performed the work of a senior NCO responsible for complete S-1 functions and operations, and received numerous accolades for his work performance. g. Numerous letters of support from coworkers, senior NCOs, and officers attesting to his work ethic and professionalism. 9. On 2 October 2013, email correspondence from the Chief, Special Actions, USAPDA, was sent to the PEB Liaison Officer (PEBLO) at Fort Campbell, KY. This official stated the applicant was eligible for a grade determination and indicated that there was a 10-day suspense to provide documentation or he would need to submit a "failure to complete" memorandum. 10. On 16 October 2013, the USAPDA forwarded the applicant's grade determination packet to the AGDRB, Army Review Boards Agency (ARBA), for determination of the highest grade satisfactorily served for the purpose of computation of retirement or separation pay. This document shows the following: * Current grade: E-4 * Highest grade previously held: E-5 * Cause for reduction: Soldier received an Article 15 on an unknown date * PEBLO failed to provide any documentation from the applicant within the 10-day time limit 11. On 6 November 2013, the AGDRB notified the USAPDA that after a thorough review of the applicant's Army Military Human Resource Record (commonly known as the OMPF) and PEB proceedings (which included an Article 15 while in the grade of SGT, dated 20 July 2010 that reflected he was reduced from SGT to SPC on 15 February 2012), the Board determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement/separation pay was his grade on the date of separation. 12. His record contains the following orders issued by 101st Airborne Division (Air Assault) and Fort Campbell, KY: a. Orders 283-0632 issued by Headquarters, 101st Airborne Division, Fort Campbell, on 10 October 2013, released him from active duty due to physical disability with an effective date of retirement of 24 December 2013 and placed him on the Retired List in the rank of SGT/E-5 on 25 December 2013. b. Orders 323-0619 issued by Headquarters, 101st Airborne Division, Fort Campbell on 19 November 2013 amended the above order to show his retired grade of rank as SPC/E-4. c. Orders 343-003 issued by the 3rd Brigade Combat Team, Fort Campbell on 9 December 2013 promoted him to SGT/E-5 effective 24 December 2013 in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-20. d. Orders 345-0624 issued by Headquarters, 101st Airborne Division, Fort Campbell on 11 December 2013 amended Orders 323-0619 to show his retired grade of rank as SGT/E-5. 13. On 23 December 2013, he was permanently retired due to disability. His DD Form 214 shows his rank/grade as SGT/E-5. His Defense Finance and Accounting Service (DFAS) retired pay record confirms that his retired grade of rank is SGT/E-5. 14. On 29 January 2014, ARBA informed the applicant that his request dated 20 September 2013 to be advanced on the Retired List under Title 10, USC, section 3964 (a provision that applied to only regular retirements, not to disability separations) had already been vetted by the AGDRB on 6 November 2013. They determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement/separation pay was his current grade of SPC/E-4. 15. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. Paragraph 3-28 describes setting aside and restorations. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 16. Army Regulation 600-8-19 paragraph 1-20 states Soldiers who are pending referral to a Military Occupational Specialty Medical Retention Board (MMRB) or referral to a MEB or PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. 17. Army Regulation 15-80 AGDRB 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. 18. Title 10, USC, section 1372, provides the legal authority for the grade to be awarded to members retiring for physical disability. It states, in 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. 19. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant requests, in effect, that his Article 15, dated 15 February 2012, be set aside; retroactive promotion to SSG/E-6 effective March 2012; and advancement to SSG/E-6 on the Retired List. 2. He contends that his undiagnosed post-concussive syndrome was the root cause of the misconduct for which he was reduced. The failure by his chain of command, the USAPDA, and AGDRB to consider how his medical condition contributed to his misconduct is an important omission because if not for the Article 15, he would have been a SGT (P) at the time of his medical retirement, and therefore, authorized to be placed on the Retired List in the grade of rank E-6 in accordance with Title 10, USC, section 1372. 3. His post-concussive syndrome diagnosis is not questioned. However, a review of his OMPF found minor disciplinary infractions were noted prior to his injury which included an Article 15, dated 20 August 2010, for dereliction of duty and numerous minor performance infractions were recorded on his annual NCOER ending 17 April 2010. This misconduct shows a pattern of indiscipline and poor duty performance that existed prior to the TBI injury that occurred in July 2010. 4. The basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. The applicant has not shown through his evidence that a clear injustice occurred in the processing of his Article 15. He was afforded the opportunity to demand trial by court-martial or appeal the decision to a higher authority. The evidence shows he did not elect either course of action at the time of the imposition of the Article 15. 5. It is acknowledged that his reduction from SGT (P) to SPC was the result of his second Article 15 which occurred after his TBI incident. However, the offense of lying to a commissioned officer is considered serious misconduct for a junior NCO. Lacking evidence to the contrary, the punishment appears proper given the nature of his misconduct and the applicant has provided insufficient evidence to support setting aside the Article 15 or restoring his rank to SGT (P). 6. The available record does show that despite his multiple disciplinary infractions, his chain of command terminated his administrative separation and directed his processing through the PDES. The PEB found his anxiety disorder, sleep disorder, and post-concussive syndrome to be unfitting. 7. As part of his physical disability processing, he was eligible for a grade determination review. He contends that he was not aware of the 10-day suspense to provide supporting documentation the AGDRB and his letters of support were not seen by that board. The evidence of record confirms these documents were not seen by the board. However, the AGDRB memorandum, dated 6 November 2013, indicates that a thorough review of his OMPF was conducted. It can be presumed that this review would have included his evaluations, awards, deployment history, disciplinary record, as well as his MEB/PEB proceedings. As such the AGDRB made a determination based on his overall performance. It is possible that his unfitting medical conditions may have contributed to his misconduct; however, prior misconduct occurred while he was a SGT and prior to his injury. Given his prior misconduct, it is difficult to definitively state that his actions where solely due to an undiagnosed/untreated medical condition. 8. The applicant was promoted to SGT at the time of his retirement; therefore, he was medically retired in that grade of rank in accordance with Title 10, USC, section 1372. Based on the above, the AGDRB's decision was appropriate and there was no basis for placing him on the retired list as a SSG/E-6. 9. As a point of clarification, the AGDRB memorandum contains an administrative error when it stated that while in the grade of E-5 he received an Article 15, dated 20 July 2010. The date should be 20 August 2010. His reduction to SPC in February 2012 was the punishment imposed from his second Article 15, dated 15 February 2012. 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) AR20140015857 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140015857 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1