IN THE CASE OF: BOARD DATE: 10 March 2016 DOCKET NUMBER: AR20150007264 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 correction of his retirement rank and pay grade to private first class (PFC)/pay grade E-3 from private two (PV2)/pay grade E-2. 2. The applicant states the reduction from E-3 to E-2 was a mistake. When he was placed on the temporary disability retired list (TDRL) he was a PFC/E-3 and was being paid as such. His pay grade was changed and he does not know why. 3. The applicant provides copies of – * his 5 October 1979 TDRL orders showing his rank as PFC * his 7 February 1980 amendment thereto changing his retired rank and pay grade to PV2/E-2 * DA Form 3713 (Data for Retired Pay) reflecting the same information with an annotation that he did not serve satisfactorily as PFC * DD Form 214 (Certificate of Release of Discharge from Active Duty) 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 enlisted in the U.S. Army Reserve on 17 November 1976 and entered active duty in the Regular Army on 12 January 1977. He completed training as a medical specialist in military occupational specialty 91B. 3. Notwithstanding nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 29 April, 9 May and 30 June 1977, he was advanced to pay grade E-2 on 12 July 1977. He was subsequently advanced to PFC/E-3 on 6 December 1977. 4. On 23 May 1978 he accepted NJP for two specifications of being absent from his place of duty and one specification of willfully disobeying his company commander. His punishment included reduction to pay grade E-2 which was suspended for 30 days. This suspension was vacated on 31 May 1978 by order of his company commander. 5. Effective 13 October 1978, Orders D195-16 issued by the U.S. Army Military Personnel Center placed him on the TDRL in pay grade E-3 due to acute schizophrenia rated at 30 percent disabling. 6. A Department of the Army Ad Hoc Review Board - Grade Determination was convened to determine whether the applicant’s reduction to pay grade E-2 was due to a culpable offense or should be excused as a result of his mental illness. In reviewing the case the board considered: a. the above NJPs and other misconduct in May 1978 that caused the vacation of the suspended sentence (reduction to E-2); b. the fact that the date of onset of his schizophrenia was medically undetermined; c. that his first hospitalization was in October 1978; and d. that the incident appeared to have been triggered or exacerbated by use of amphetamines, hashish, and barbiturates. 7. The board with appropriate authority unanimously concluded on 31 January 1980 that the applicant’s service in pay grade E-3 had not been satisfactory and his TDRL orders were amended on 7 February 1980 to change his retired rank and pay grade to PV2/E-2. 8. On 31 July 1981 he was removed from the TDRL and placed on the permanent disability retired list in pay grade E-2 by Orders D123-15 issued by the U.S. Army Military Personnel Center. 9. Headquarters Department of the Army General (HQDA) Orders Number 9 dated 5 February 1969 established the Army Council of Review Boards, specifically the Ad Hoc Review Board to review and consider cases properly brought before it. 10. HQDA Order Number 16, dated 16 July 1985, established the Army Grade Determination Review Board (AGDRB) and in turn Army Regulation 15-80 (AGDRB) was written to provide guidance in determining or recommending the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for 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 and/or a reduction was caused by NJP. One specific act of misconduct may form the basis for a determination that the overall service in that grade was not satisfactory. DISCUSSION AND CONCLUSIONS: 1. The applicant states that reduction of his retired pay grade to PV2/E-2 was a mistake. 2. Due to his misconduct he received a suspended reduction to pay grade E-2 at the 28 May 1978 NJP and that suspension was subsequently vacated on 31 May 1978. There is no evidence that he was advanced to PFC/E-3 prior to his release from active duty and placement on the TDRL. Notwithstanding this fact, his initial TDRL orders were published showing his retired rank and pay grade as PFC/E-3. Hence, his retired pay account showed this rank and pay grade. In 1980 an Ad Hoc Review Board reviewed his personnel record and determined the highest grade he satisfactorily held was PV2/E-2. Subsequently, his TDRL orders were amended and his retired pay account adjusted accordingly. 3. The evidence of record shows that the facts and circumstances of the applicant’s reduction to pay grade PV2/E-2 were carefully considered by an appropriate board. The board determined the applicant did not serve satisfactorily in pay grade E-3. Therefore, his retirement in pay grade E-2 was proper and just. 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) AR20150008218 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007264 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1