BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20160012070 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: 9 March 2017 DOCKET NUMBER: AR20160012070 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 to amend the decision of the ABCMR set forth in Docket Number AR20140010831, dated 6 March 2015. ____________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: 9 March 2017 DOCKET NUMBER: AR20160012070 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 reconsideration of his earlier request for placement on the Temporary Disability Retired List (TDRL) in the rank of sergeant/E-5. 2. The applicant states: a. He feels his case has not been satisfied. The nonjudicial punishment (NJP) procedures were not held in accordance with military court-martial procedures. His Army Board for Correction of Military Records (ABCMR) appeal was unfair. The treatment he received, professionally and personally, while assigned to the 36th Engineer Brigade and 62nd Engineer Battalion was unsatisfactory. b. His NJP was illegal. He was told the answers he gave pertaining to the motorcycle accident were safety concerns and not for NJP purposes. He was never read his Article 31 rights and was told a lawyer was not needed because the interview was non-punitive in nature. After the accident, he would have had a lawyer present for all interviews and questioning. He was sent to the legal office and they prepared a dismissal of charges. He was told by his command that he would not receive NJP since the legal office proved he did not commit any violations of the Uniform Code of Military Justice (UCMJ). c. He requested to go to the medical treatment facility for post-traumatic stress disorder conditions and the command was more focused on killing him than his health and well-being. Knowing his judgment was impaired, they brought in seven officers and senior noncommissioned officers to intimidate him into accepting NJP under Article 15. He requested a lawyer's presence and was denied. His command knew he was not mentally stable for punitive action. d. His original application was returned to him, stating there was no punitive actions during his enlistment in the Army. Since there were no punitive actions, he should be restored to the rank of sergeant/E-5. He sent his DD Form 214 (Certificate of Release or Discharge from Active Duty), proving his original date of rank for sergeant was December 2000. The application was returned and now there is punitive action in his personnel file. He feels it is unjust not to be able to appeal. e. He and his family were treated unsatisfactorily by his chain of command at Fort Hood. He was denied inpatient care for post-traumatic stress disorder in March 2010. In late July 2010, he fractured two sacral vertebrae in his spine and was directed to carryout training on a leadership course instead of waiting for same-day magnetic resonance imaging at Darnell Army Hospital. In November 2010, his command would not allow him to attend his wife's medical procedure. Medical attention was denied, his physical profile limitations were violated, and his name was removed from the staff sergeant promotion board for no valid reason. His command lied to the police and forged documents, and he was arrested and thrown in jail under a false pretense. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140010831 on 6 March 2015. 2. His contentions are new arguments that were not previously considered by the Board and warrant consideration at this time. 3. Having prior enlisted service in the U.S. Marine Corps, he enlisted in the Regular Army on 1 December 2008 in pay grade E-5 for a period of 4 years. 4. His records contain a DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 14 September 2011, showing he did not demand trial by court-martial and elected to proceed with the Article 15 hearing. NJP was imposed against him for violating two lawful general regulations by wrongfully allowing a sergeant to operate a motorcycle without completion of the Basic Riders Course and allowing a sergeant to operate a motorcycle without wearing the appropriate personal protective equipment. Item 6 (The following punishment is imposed;) of the form is blank. He appealed the NJP, but the DA Form 2627 is incomplete. The issuing commander did not direct filing the DA Form 2627 in the performance or restricted section of his official military personnel file and indicated the applicant held the rank of E-4 or below at the start of proceedings. 5. His Enlisted Record Brief, prepared on 20 August 2012, shows his date of rank for specialist/E-4 as 14 September 2011. 6. On 28 August 2012, the U.S. Army Physical Disability Agency requested the Army Grade Determination Review Board review the applicant's case for determination of the highest grade satisfactorily served for the purpose of computation of retirement or separation pay. The following information was provided: * current grade – E-4 * highest grade previously held – E-5 * cause for reduction – NJP on 14 September 2011 7. On 9 October 2012, the Army Grade Determination Review Board determined the highest grade in which the applicant served satisfactorily for the purpose of computation of disability retirement/separation pay was his grade on the date of separation. 8. On 31 October 2012, he retired and was placed on the TDRL in the rank of specialist/E-4. His DD Form 214 shows in: * item 4a (Grade, Rate or Rank) – specialist * item 4b (Pay Grade) – E04 * item 12i (Effective Date of Pay Grade) – 14 September 2011 9. On 6 March 2015, the ABCMR denied his request for placement on the TDRL in the rank of E-5 because he received a reduction in rank from sergeant/E-5 to specialist/E-4 as a result of his NJP on 14 September 2011. 10. On 9 April 2015, he was removed from the TDRL and permanently retired in the rank of specialist/E-4. REFERENCES: Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice. It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial. It states the authority to impose NJP charges a commander with the responsibility of exercising the commander's authority in an absolutely fair and judicious manner. It states the imposing commander is not bound by the formal rules of evidence before courts-martial. DISCUSSION: 1. The applicant's contentions pertaining to his unsatisfactory treatment was carefully considered. However, there is no evidence of record and he provided no evidence to support these contentions. 2. He contends he should have been retired and placed on the TDRL in the rank of sergeant/E-5 because his NJP was unjust. There is no evidence the NJP was improperly imposed. 3. Although his DA Form 2627 does not show the punishment imposed as a result of the NJP, the evidence of record indicates he was reduced from sergeant/E-5 to specialist/E-4 on the same date of the NJP. It appears to have been the issuing commander's judgment that violating two lawful general regulations warranted a one-grade reduction. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012070 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012070 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2