IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150004475 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, the highest grade in which he satisfactorily served for the purpose of computation of disability separation pay be determined to be as specialist (SPC)/E-4. 2. The applicant states he was forcibly accused of disrespecting a sergeant (SGT)/E-5 which resulted in his reduction in rank from SPC to PFC just 9 months prior to his medical discharge. He contends that his comments were meant as a joke but the situation quickly went in the wrong direction because of a racial twist and because his chain of command did not like him. He feels he was wrongfully reduced in order to teach him a lesson. Further, at the time he was going to multiple medical appointments as part of his medical evaluation board (MEB) processing and he was not in the right frame of mind to fight the outcome. He asserts he was within 9 months of being promoted to SGT and from his perspective the reduction punishment was unfair. 3. The applicant provides: * Enlisted Record Brief (ERB), dated 29 September 2014 * three DA Forms 4856 (Developmental Counseling Form) * memorandum, Army Grade Determination Review Board (AGDRB), dated 16 December 2014 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 2 January 2013. 2. His ERB shows he was promoted to SPC/E-4 on 2 January 2013. 3. He submitted three general counseling forms which show he was counseled on – * 25 February 2014 for lacking motivation and verbally threatening a noncommissioned Officer (NCO) by asking if punching him would hasten his departure from the military * 26 February 2014 for disrespecting a senior supply specialist by not assisting him with supply pick up and telling him he needed to learn how to do his job * 19 March 2014 notifying him that based on the above misconduct he would receive a formal Company Grade Article 15 hearing and flagged for promotion pending adverse action and the flag would remain on his ERB for 6 months 4. On 24 March 2014 he accepted, without appeal, nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for wrongfully communicating a threat to punch an NCO. 5. His punishment was reduction to PFC/E-3, forfeiture of $210.00 pay, extra duty for 14 days, and restriction to the limits of the installation. 6. On 26 November 2014, the AGDRB convened to review the applicant’s official military personnel file (which included his Article 15 while in the grade of E-4, dated 24 March 2015) and his physical evaluation board (PEB) proceedings. The AGDRB determined the highest grade in which he served satisfactorily for the purpose of computation of disability separation pay was his current grade of PFC/E-3. 7. On 11 December 2014 he was discharged due to disability (non-combat) with entitlement to severance pay in the rank of PFC/E-3. 8. 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 NJP 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. DISCUSSION AND CONCLUSIONS: The record shows that while serving as a SPC/E-4, the applicant accepted NJP for threatening an NCO. He was subsequently reduced to PFC/E-3. His contention that he made the statement as a joke does not negate his misconduct. While he argues he personally did not have time to appeal the NJP, he was afforded the right to appropriately appeal it through his chain of command. He waived his right to an appeal and consideration by a higher authority. Thus, there is no error in the processing of the NJP and imposition of its punishment. Further, there is no evidence in the record, and the applicant failed to provide evidence that his reduction was unjust, erroneous, or inequitable. 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) AR20150004475 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004475 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1