ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20160019315


APPLICANT REQUESTS:  to be retired in the highest rank/grade he held which is sergeant first class (SFC)/E-7 rather than staff sergeant (SSG)/E-6  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* An appeal to the Qualitative Management Program (QMP)
* An appeal of an administrative reduction and related documents 
* The results of his disability grade determination
* The findings of an administrative separation board  

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states:  

     a.  He was medically retired as an SSG due to an administrative reduction of his rank that occurred in April 2015.  He feels the demotion was unjust and he would like to retire in the rank of Sergeant First Class.  The misconduct and conviction occurred years ago, in a prior enlistment period. The misconduct occurred in May 2010 and he was convicted in May 2012 and was rehabilitatively transferred to HHC, 4IBCT, where he was tasked to work at division in the G-3 section.  He reenlisted in February 2013.  The untimeliness of this reduction should be taken into account when deciding whether the reduction is fair and in the best interests of the Soldier and the Army.

     b.  In this case, to administratively reduce a Soldier five years after the misconduct, three years after the conviction, and after the Soldier has been rehabilitatively transferred and allowed to reenlist, is neither in the interest of justice nor in the best interest of the Army or the Soldier If my chain of command at the time felt that he was not worthy of his rank or should be administratively separated, they would have taken those actions at that time For a subsequent commander to reach back far into a Soldier's past and second-guess the pnor chain of command's decisions regarding that misconduct causes significant doubt in the mind of Soldiers, especially those who have been rehabilitatively transferred in order to overcome their past For those reasons, my rank reduction should be vacated and I should be medically retired at the rank of Sergeant First Class.

3.  The applicant provides:

     a.  A memorandum dated, 24 March 2015 and signed by Brigadier General (BG) X__ directing he be retained and rehabilitatively transferred pursuant to the results of an administrative separation board. 

     b.  An undated QMP appeal letter from applicant in which he discusses his receipt of nonjudicial punishment (NJP) on 22 October 2014 and notes that three months later an administrative separation board deemed him worthy to proceed with his military career.

     c.  A copy of the 17 June 2016 Army Grade Determination Review Board (AGDRB) decision in his disability grade determination case wherein the AGDRB determined that the highest grade in which he served satisfactorily for the purpose of disability retirement/separation pay is his grade on the date of separation.  

     d.  A 15 April 2015 appeal of his administrative reduction with seven enclosures.

     e.  Documents related to his administrative reduction including several from the Superior Court of Chatham County, Eastern Judicial Circuit of the State of Georgia.  The documents reflect that on 18 August 2010, applicant was indicted on two counts of aggravated assault and one count of possession of a firearm during the commission of a felony.  The offenses occurred on or about 2 May 2010.  In May 2012, pursuant to a plea agreement, applicant was convicted of a single count of simple assault and sentenced to twelve months confinement all of which was suspended.   

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

     a.  He enlisted in the Regular Army on 21 September 2001 and continued serving through a series of immediate reenlistments. 

     b.  He was promoted to SFC on 1 July 2010.

     c.  On 22 October 2014, he received NJP.  He declined to demand court-martial, requested a closed hearing, and presented matters in defense, extenuation, or mitigation on his own behalf.  He was found guilty of failing to report for morning accountability formation and making a false official statement in connection with his 28 February 2013 reenlistment by falsely stating that he had never been arrested, charged, or convicted of an offense.  He was found not guilty of disrespecting a superior commissioned officer.

     d.  On 29 January 2015, he was retained by an administrative separation board which found that he did not have the intent to deceive when he signed his 2013 reenlistment paperwork indicating that he had never been arrested, charged, or convicted of an offense.              

     e.  On 24 March 2015, BG X__, bound by the separation board’s decision, directed applicant’s retention and rehabilitative transfer.

     f.  On 27 March 2015, his brigade commander administratively reduced applicant from SFC to SSG based on misconduct in the form of his 9 May 2012 Chatham County Georgia conviction for simple assault and twelve month suspended sentence to confinement.

     g.  The applicant’s 15 April 2015 appeal of his administrative reduction was subsequently denied by BG X__.

     h.  On 2 May 2016, a Physical Evaluation Board recommended he be placed on the temporary disability retired list (TDRL) due to post-traumatic stress disorder rated at fifty percent.

     i.  On 6 June 2016, the United States Army Physical Disability Agency forwarded his case to the AGDRB.

     j.  On 17 June 2016, in case number AR20160010129, the AGDRB determined that applicant’s highest grade satisfactorily held for the purpose of the computation of disability retirement pay is his grade on the date of separation.    

     k.  He was placed on the TDRL on 27 July 2016.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* item 4a (Grade, Rate or Rank), SSG
* item 4b (Pay Grade), E-6

5.  By law and regulation, Soldiers retiring for disability are entitled to retire in the highest grade satisfactorily held.     
       

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was warranted.  Based upon the time between the misconduct and the administrative reduction, as well as the applicant successfully completing a rehabilitative transfer which was as a result of the misconduct, the Board concluded that there was an injustice which warranted removing the administrative reduction from the applicant’s record and storing his retired rank to Sergeant First Class.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 Army records of the individual concerned be corrected by:
* removing all records relating to the applicant’s administrative reduction in rank to Staff Sergeant (SSG)
* restoring his rank to Sergeant First Class (SFC) and placing him on the TDRL list as a SFC
	 
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.  10 USC, section 1372 (Grade on retirement for physical disability: members of armed forces), in effect at the time, states 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, or whose name is placed on the temporary disability retired list (TDRL), 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 TDRL or, if his name was not carried on that list, on the date when he is retired.

     (2)  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he retired.

     (3)  The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

     (4)  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.
2.  Army Regulation 15-80 (Boards, Commissions, and Committees—Army Grade Determination Review Board and Grade Determinations), in effect at the time, governs the actions and composition of the Army Grade Determination Review Board (AGDRB).  The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.

     a.  Paragraph 2-4 states the AGDRB will consider each case on its own merits.  Generally, determination will be based on the Soldiers overall service in the grade in question.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to the following:

* Medical reasons, which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substance performance
* Compassionate circumstances
* Lengths of time in grade
* Performance level
* Nature and severity of misconduct, if any
* The grade at which the misconduct was committed  

     b.  Paragraph 2-5b states that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause, owing to misconduct, caused by nonjudicial punishment, or the result of the sentence of a court-martial.  

     c.  Paragraph 2-6 states that if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade held.  

     d.  Paragraph 3-1, states for enlisted Soldiers the AGDRB will make final determinations on behalf of the Secretary of the Army.  It will determine the highest grade in which a Soldier has served satisfactorily for purposes of physical disability retirement, computation of retired pay, or separation for physical disability.  Enlisted grade determinations will result in either a decision to retain the individual’s current grade or to advance to a higher grade in which the individual satisfactorily served.   


ABCMR Record of Proceedings (cont)	 AR20160019315


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