ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20170000612 APPLICANT REQUESTS: correction of his record to show he was medically retired in the highest grade held of Sergeant (SGT)/E-5 instead of Specialist (SPC)/ E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Disability Evaluation * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states: a. during his time as a SGT in the Army, he served honorably. Most of the time was spent as a Squad Leader, a position usually reserved for a Staff Sergeant (SSG)/E-6. He was demoted to E-4 for following a verbal argument with a Captain (CPT) outside of a bar in which they were both drinking and the CPT antagonized him. b. he was medically retired due to physical and psychological injuries to include PTSD, TBI and 4th degree burns to approximately 35% of his body. He states he devoted over 7 years of his life to being an infantryman in the United States Army and the rank of SPC does not reflect his service to his country. After leaving the Army, he finds his military experience is the only experience he has. Many more jobs would be attainable for him if the reflection of his military experience reflected that of a noncommissioned officer and leader. 2. The applicant provides: * Disability Evaluation showing he was assigned a permanent 100% disability evaluation for his service connected disabilities effective 25 March 2014 * DD Form 214 showing his grade as SPC/E-4 with an honorable medical retirement, Purple Heart, Army Good Conduct Medal (2nd Award) 3. A review of the applicant’s records show: * 25 January 2007 - enlisted in the Regular Army (RA) * 1 December 2010 – promoted to SGT * 13 May 2012 - reduced to SPC due to an Article 15 for disrespect to a Commissioned Officer * 19 December 2013 - received an Informal Physical Evaluation Board (PEB) showing: o after deployments in 2008 and 2010, he suffered from Posttraumatic stress disorder (PTSD) o he received 3rd degree burns to 30% of his body while burning trash in Columbus, GA * 19 March 2014 - his request to receive a medical retirement at the rank of E-5 was denied by the Army Grade Determination Review Board (AGDRB) o it was determined that the highest grade in which he served satisfactorily for the purpose of computation disability retirement/separation pay is his grade on the date of separation of E-4, due to the applicant receiving an Article 15 while in the grade of E-5 on 13 May 2012 o One of the three AGDRB members made a note that based on the Soldier’s record, E-5 in 3 years, 2 x Army Achievement Medals. Army Commendation Medal, Purple Heart, Combat Action Badge, good Noncommissioned Officer Evaluation Reports, and no other derogatory information and no record of the Article 15, the Soldier’s story behind why he received the Article 15 is very creditable and conceivable the officer, while in civilian clothes, played “stump the chump, gotcha.” The Board member voted to retire the applicant as an E-5 o the applicant explains to the AGDRB that a man who had been drinking, followed him to his car and asked if he was going to drive, the applicant said no and the man called him a liar, they then argued and the man identified himself as a Captain and showed his ID card and prompted the applicant to hit him; the applicant walked away and the next day received an Article 15 for disrespect to a commissioned officer; his PCS orders were cancelled, his family and him were without household goods for nearly 7 months and he did not receive a copy of his Article 15 and was not counseled or given the opportunity to tell his side of the story * 24 March 2014 – medically retired for PTSD, major depressive disorder, and cognitive disorder, third degree burns over 30% of his body surface, left and right lower extremities 3. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) a. Paragraph 2–4. Grade determination considerations states a grade determination is an administrative decision to determine appropriate retirement grade. The AGDRB will consider each case on its own merits. Generally, determination will be based on the soldier’s overall service in the grade in question. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following: a. Medical reasons, which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance. b. Compassionate circumstances. c. Lengths of time in grade (TIG). The AGDRB cannot waive statutory TIG requirements for retirement at the current grade d. how active duty service obligation policies affect grade determinations. e. Performance level, as reflected in evaluation reports and other portions of the service record that reflect performance.. f. Nature and severity of misconduct, if any. g. The grade at which the misconduct was committed. b. Paragraph 2–5. Unsatisfactory service: Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: a. The highest grade was a result of a terminal leave promotion b. Reversion to a lower grade was— (1) Expressly for prejudice or cause. (2) Owing to misconduct. (3) Caused by nonjudicial punishment pursuant to UCMJ, Art. 15. (4) The result of the sentence of a court-martial. c. 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. c. Paragraph 3-1 states for enlisted cases, the AGDRB will determine the highest grade in which a soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay (10 USC 1406 or 1407), or separation for physical disability. While enlisted soldiers may be reduced in grade by courts- martial, nonjudicial punishment proceedings (UCMJ, Art. 15), administrative separation proceedings, or inefficiency boards, enlisted grade determinations cannot result in reduction of an enlisted soldier’s or retiree’s current grade. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his awards, his reduction to Specialist due to NJP, the results of the Army Grade Determination Board and the grade in which he was medically retired. The Board found no evidence that the applicant was again recommended for or promoted to SGT, and the applicant provided none. The Board determined, by a preponderance of evidence, that the applicant’s grade at the time of separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) a. Paragraph 2–4. Grade determination considerations states a grade determination is an administrative decision to determine appropriate retirement grade. The AGDRB will consider each case on its own merits. Generally, determination will be based on the soldier’s overall service in the grade in question. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following: a. Medical reasons, which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance. b. Compassionate circumstances. c. Lengths of time in grade (TIG). The AGDRB cannot waive statutory TIG requirements for retirement at the current grade d. how active duty service obligation policies affect grade determinations. e. Performance level, as reflected in evaluation reports and other portions of the service record that reflect performance.. f. Nature and severity of misconduct, if any. g. The grade at which the misconduct was committed. b. Paragraph 2–5. Unsatisfactory service: Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: a. The highest grade was a result of a terminal leave promotion b. Reversion to a lower grade was— (1) Expressly for prejudice or cause. (2) Owing to misconduct. (3) Caused by nonjudicial punishment pursuant to UCMJ, Art. 15. (4) The result of the sentence of a court-martial. c. 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. c. Paragraph 3-1 states for enlisted cases, the AGDRB will determine the highest grade in which a soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay (10 USC 1406 or 1407), or separation for physical disability. While enlisted soldiers may be reduced in grade by courts- martial, nonjudicial punishment proceedings (UCMJ, Art. 15), administrative separation proceedings, or inefficiency boards, enlisted grade determinations cannot result in reduction of an enlisted soldier’s or retiree’s current grade. 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) AR20170000612 5 1