IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008145 BOARD VOTE: ____x___ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008145 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by: * showing he was placed on the Retired List in the rank/grade of SGT/E-5 effective 19 March 2014 * paying him retired pay at the rate of SGT/E-5 effective 19 March 2014 as a result of this correction ___________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. IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008145 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 retired rank/grade to show sergeant (SGT)/E-5 instead of specialist (SPC)/E-4. 2. The applicant states: * he previously held the rank of SGT/E-5 * his reduction in rank was for inefficiency and not due to nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice * the Army Grade Determination Review Board did not process his request for a grade determination prior to issuance of his permanent disability orders * his disability retirement orders were issued on 12 February 2015 with an effective date of 19 March 2015 * he submitted his grade determination request on 25 February 2015 3. The applicant provides: * self-authored letter, dated 27 April 2015 * self-authored grade determination request letter, dated 25 February 2015 * Company A, 690th Brigade Support Battalion, memorandum, dated 3 March 2013, subject: Reduction under Army Regulation 600-8-19 (Enlisted Promotions and Reductions), [Paragraph] 10-5, Reduction for Inefficiency CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Army National Guard in the rank/grade of private/E-1 on 21 December 1993 for a period of 8 years. 2. On 17 August 1995, he was promoted to SPC/E-4. 3. On 20 December 1999, he was transferred to the U.S. Army Control Group (Annual Training). 4. On 16 May 2000, he enlisted in the Army National Guard. 5. On 19 February 2004, he was ordered to active duty as a member of the Army National Guard in support of Operation Iraqi Freedom. 6. On 4 February 2005, he was honorably released from active duty to the control of the Army National Guard. 7. On 16 May 2005, he reenlisted in the Army National Guard in the rank/grade of SPC/E-4. 8. On 27 June 2005, he immediately reenlisted for a period of 6 years for a reenlistment bonus while serving in the rank/grade of SPC/E-4. 9. On 24 September 2007, he was promoted to the rank/grade of SGT/E-5. 10. On 11 February 2009, he was ordered to active duty in support of Operation Iraqi Freedom. 11. On 17 March 2010, he was honorably released from active duty. 12. His DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) show he failed his APFT or received a "No Go" rating on the following dates: * 24 October 2010 * 6 February 2011 * 3 April 2011 13. His DA Forms 4856 (Developmental Counseling Form) show he was counseled about his APFT on the following dates: * 23 November 2011 * 4 December 2011 * 6 May 2012 * 10 June 2012 * 15 July 2012 * 4 August 2012 * 21 October 2012 14. On 3 March 2013, his commander notified him of his intent to initiate reduction action against him under the provisions of Army Regulation 600-8-19, chapter 10, for inefficiency. He acknowledge receipt of the notification on the same date and he elected not to submit a statement in his own behalf. 15. On 18 April 2013, he was notified to appear before a reduction board on 5 May 2013 and he was advised of his rights. 16. On 22 April 2013, his scheduled appearance before a reduction board was changed to 4 May 2013. 17. A memorandum from Headquarters, 690th Brigade Support Battalion, dated 6 May 2013, subject: Reduction Board Minutes: RE: [Applicant], shows the reduction board unanimously agreed and voted to recommend the applicant's reduction to the rank/grade of SPC/E-4. The memorandum also shows the applicant appeared before the board and stated he did not try to make any excuses for his lack of physical fitness. Instead, he offered the board information about performance of a Soldier and how it did not prevent one from being a mobilization asset. His commander approved the recommendation for reduction on the same date. 18. State of North Carolina, Department of Public Safety, Joint Force Headquarters, Orders 155-911, dated 4 June 2013, show he was reduced from SGT/E-5 to SPC/E-4 with an effective date of 4 May 2013. 19. On 15 October 2013, he was issued a DA Form 3349 (Physical Profile) for depression, anxiety, and post-traumatic stress disorder (PTSD). He was cleared for the AFPT 2-mile run, sit-ups, and push-ups. His levels of functional capacity in the six factors (PULHES) were listed as: * P – physical capacity or stamina – 3 * U – upper extremities – 1 * L – lower extremities – 1 * H – hearing and ears – 1 * E – eyes – 1 * S – psychiatric – 3 20. Item 8 (Functional Limitations and Capabilities and Other Comments) of his DA Form 3349 shows: * his expected date of being fully mission capable as 13 January 2014 * justification comments for being fully mission capable was listed as to be determined * he was taking medications that could impair his ability to function * he was unable to be cleared to carry weapons or deploy * he was recommended for review by a medical evaluation board 21. On 18 December 2013, a 6-month retention exception to policy was approved for the applicant in order to complete his physical evaluation board (PEB). It was further directed that he be extended under normal circumstances as long as he met the criteria for extension. 22. On 28 May 2014, he was notified of his non-selection for continued unit participation and his projected date of separation of 26 June 2014. 23. On 24 September 2014, he was issued his notification of eligibility for retired pay at age 60 (20-year letter). 24. On 18 December 2014, an exception to policy was approved for a 1-year extension for the applicant. On 18 December 2014, the applicant extended his enlistment for a 1-year period. 25. His DA Form 199 (Informal PEB Proceedings), dated 13 January 2015, shows his case was adjudicated as part of the Integrated Disability Evaluation System. a.  An informal PEB found the applicant unfit and recommended his permanent disability retirement with a 50-percent disability rating for PTSD also claimed as depression and anxiety (PEB referred as PTSD). Condition onset in 2004 in Iraq. b.  His condition had not responded adequately to treatment and represented a decided medical risk to his mental health. c.  He concurred with the findings and recommendations and he elected not to request reconsideration of his ratings. d.  On 19 February 2015, the informal PEB findings and recommendations were approved. 26. U.S. Army Physical Disability Agency Order D-043-49, dated 12 February 2015, shows he was placed on the Retired List effective 19 March 2014 in the retired grade of E-4 with a 50-percent disability rating. The authority is shown as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Title 10, USC, section 1204. 27. He provided his request for grade determination to the President, Army Grade Determination Review Board, dated 25 February 2015, in which he stated his reduction was due to inefficiency and not as the result of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice. 28. North Carolina Adjutant General Orders 117-866, dated 27 April 2015, honorably discharged him from the Army National Guard effective 18 March 2015 in the rank of SPC. 29. His records are void of evidence showing he was unable to pass his APFT during the period 2004 through 2009 or he had a limiting physical profile during this period. 30. A review of his records shows he consistently received "superior" and "successful" evaluation ratings during the same periods covering his APFT failures. 31. His records are void of any misconduct or evidence showing his case was referred to the Army Grade Determination Review Board. REFERENCES: 1. Army Regulation 600-8-19, in effect at the time, prescribed policies and procedures governing promotions and reductions of Army enlisted personnel. a.  Paragraph 10-5 states inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and MOS. Inefficiency may also include any act or conduct that clearly shows that the Soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience. b.  Paragraph 11-13 states reductions are effective on the date the Soldier receives written notification or, if the Soldier is not available due to personal convenience or through neglect, on the date written notice is received at his or her proper station. 2. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board. The Army Grade Determination Review Board determines or recommends the highest grade satisfactorily held for service/ physical disability retirement, retired pay, and separation for physical disability. a.  Paragraph 2-4 states the Army Grade Determination Review Board will consider each case on its own merits. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to: medical reasons which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance; compassionate circumstances, or lengths of time in grade; performance level as reflected in evaluation reports and other portions of the service record that reflect performance; nature and severity of misconduct, if any; and the grade at which the misconduct was committed. b.  Paragraph 2-5 states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: (1)  the highest grade as the result of a terminal leave promotion; (2)  reversion to a lower grade was: * expressly for prejudice or cause * owning to misconduct * caused by nonjudicial punishment pursuant to the Uniform Code of Military Justice, under the provisions of Article 15 * the result of the sentence of a court-martial (3)  there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. c. Paragraph 2-7 states all active duty or active Federal service may be considered as continuous, or each period of duty may be considered separately if it is to the Soldier's benefit, unless a specific interpretation is required by statute. "Satisfactory service" is defined as service absent of any negative personnel or Uniform Code of Military Justice action. The length of time of satisfactory service for enlisted Soldiers is not specified in law or regulation when there are no negative personnel or Uniform Code of Military Justice actions. d.  Paragraph 3-3 states an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the Army Grade Determination Review Board for a grade determination unless the Soldier is entitled to a higher or equal grade by operation of law (Title 10, USC, sections 1212 and 1372). 3. Title 10, USC, section 1204, defines retirement for members serving on active duty for 30 days or less or performing inactive duty training. Upon a determination by the Secretary concerned that a member of the Armed Forces not covered by sections 1201, 1202, or 1203 of this title is unfit to perform duties of his office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title, if the Secretary also determines the disability is: a.  based upon accepted medical principles and is of a permanent nature and stable; b.  a result of an injury, illness, or disease incurred or aggravated the in line of duty; c.  not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and d.  at least 30-percent disabling under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination. DISCUSSION: 1. He was promoted to the rank/grade of SGT/E-5 on 24 September 2007. 2. He failed his APFTs during the period 24 October 2010 through 21 October 2012 following his second deployment and he had no documented limiting physical conditions at that time. 3. He was reduced to the rank/grade of SPC/E-4 on 4 June 2013 for inefficiency for failing his APFT. 4. His DA Form 199, dated 13 January 2015, shows the PEB determined the onset of his PTSD was in 2004 and was 50-percent disabling. 5. Although he requested a grade determination on 25 February 2015, he was placed on the Retired List effective 19 March 2014 in the retired grade of E-4 with a 50-percent disability rating. It is unclear why the Army Grade Determination Review Board did not make a grade determination prior to his disability retirement. 6. His evaluations show he was consistently rated as "superior" and "successful" and, other than APFT problems, his records are void of any additional evidence of derogatory information, negative personnel actions, or Uniform Code of Military Justice actions during the period he served in the rank/grade of SGT/E-5. 7. There is no regulatory requirement or provision of law specifying a required length of active duty to qualify as "satisfactory service" for an enlisted member. 8. Based on his overall record, and in the interest of fairness and equity, it appears he should have been placed on the Retired List in the rank/grade of SGT/E-5. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150008145 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings AR20150008145 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2