ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20160015766


APPLICANT REQUESTS: partial reconsideration of his earlier request to be placed on the retired list in a higher grade, specifically:

* To be retired in the rank/grade of Sergeant (SGT)/E-5 
* If he is not retired in the rank/grade of SGT/E-5 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show his rank as Corporal (CPL) rather than specialist (SPC) 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214
* Five DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* DA Form 4187 (Personnel Action) capturing lateral appointment to CPL
* Two Army Commendation Medal awards
* Four Army Achievement Medal awards
* One Good Conduct Medal award
* One Honor Graduate Certificate
* One Certificate of Achievement as Noncommissioned Officer of the Month

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150005399 on 28 June 2016.

2.  Applicant states that he was not afforded an opportunity to be reviewed by a grade determination board prior to his separation.  He should be retired as a SGT, because outside of the incident of the Article 15, his overall service as a SGT was exceptional as evidenced by his NCOERs, awards and certificates of achievement during that time.  He also states that reducing him from SGT to SPC is a clear injustice and that he first should have been reduced to CPL and then laterally appointed to SPC thus making the correct rank on his DD 214 CPL.  

3.  A review of applicant’s service record shows the following: 

     a.  Applicant enlisted in the Regular Army on 6 July 2007 and continued to serve on active duty through a series of reenlistments.

     b.  He was promoted to SPC/E-4 on 1 February 2009 and laterally promoted to CPL/E-4 effective 10 July 2009.  He was promoted to SGT/E-5 on 1 October 2009.

     c.  He served in Iraq from 2 July 2011 to 31 December 2011 and in Kuwait from 1 January 2012 to 2 July 2012.

     d.  On 19 December 2013 applicant, after consulting with military defense counsel, accepted field grade level non-judicial punishment for creating three sets of false orders and wearing a Combat Action Badge to which he was not entitled.  He was found guilty of all charges and specifications.  His punishment consisted of reduction to SPC and given extra duty for 28 days. 

     e.  On 29 August 2014 an informal physical evaluation board found applicant physically unfit due to lower back issues and recommended he be permanently retired.  

     f.  On 24 November 2014 the U.S. Army Physical Disability Agency (USAPDA) requested that a grade determination be conducted in applicant’s case.  Included in the request for a grade determination was a submission from applicant to the Army Grade Determination Review Board (AGDRB).  Applicant’s submission, dated 12 September 2014, consisted of a personal statement and enclosures.

     g.  On 29 November 2014, applicant was permanently retired due to disability in the rank/grade of SPC/E-4.

     h.  On 14 December 2014, the AGDRB met and determined that the highest grade applicant had served in satisfactorily for purposes of computing his disability separation or retirement pay is his grade on the date of separation.  A memorandum capturing this result was dispatched to the USAPDA on 2 January 2015.   

4.  By regulation (AR 27-10) field grade commanders are authorized to reduce Soldiers in the rank/grade of SGT/E-5 one grade through non-judicial punishment procedures.  

5.  By regulation (614-200), commanders in the rank/grade of lieutenant colonel/O-5 may authorize the lateral appointment of specialist (SPC) to corporal (CPL).  The unit commander may laterally appoint CPL to SPC without the Soldier’s consent for disciplinary action taken under the UCMJ that adversely affects the ability to perform duties as a noncommissioned officer.  



BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Although the applicant was promoted to Sergeant E5 on 1 October 2009, he later received a Field Grade Article 15 where he was reduced to Specialist E4.  The Board found that after receiving that Article 15, there is no evidence that the applicant was ever promoted back to Sergeant or laterally promoted to Corporal.  For that reason, the Board concluded the rank on his current DD Form 214 accurately depicts the rank the applicant held when discharge.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
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.



REFERENCES:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records) essentially states that the ABCMR will entertain requests for reconsideration submitted within one year of the Board’s original decision if a matter has not been previously reconsidered and/or the applicant submits new facts or argument as to why relief should be granted that were not in the record at the time of the Board’s prior consideration.   

2.  Title 10, U.S. Code, section 1372, essentially states, in relevant part, that unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability is entitled to the grade equivalent to the highest of the following: 1) the grade or rank in which he is serving on the date when his name is placed on the date he retired or 2) the highest temporary grade or rank in which he served satisfactorily as determined by the Secretary of the Armed Force from which he is retired.

3.  Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations), in effect at the time, governs the actions and composition of the AGDRB.  The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.  The AGDRB makes final discretionary grade determinations on behalf of the Secretary of the Army.  Enlisted soldiers being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination, unless the soldier is entitled to a higher or equal grade by operation of law.  Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was caused by non-judicial punishment pursuant Article 15 of the Uniform Code of Military Justice (UCMJ).

4.  Army Regulation 27-10 (Military Justice), Table 3-1, in effect at the time, permits field grade commanders to reduce soldiers in the rank/grade of SGT/E-5 one grade through non-judicial punishment procedures.  

5.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management), in effect at the time, states commanders in the rank/grade of Lieutenant Colonel/O-5 may authorize the lateral appointment of Specialist (SPC) to Corporal (CPL).  The unit commander may laterally appoint CPL to SPC without the Soldier’s consent for disciplinary action taken under the UCMJ that adversely affects the ability to perform duties as a noncommissioned officer.       

ABCMR Record of Proceedings (cont)	 AR20160015766


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