IN THE CASE OF: BOARD DATE: 29 August 2018 DOCKET NUMBER: AR20170000877 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 IN THE CASE OF: BOARD DATE: 29 August 2018 DOCKET NUMBER: AR20170000877 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. ___________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 August 2018 DOCKET NUMBER: AR20170000877 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his retirement rank/grade as staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5. 2. The applicant states, in effect, his retirement rank is incorrect. 3. The applicant provides: * Orders 333-504 * DD Form 214 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having 2 years, 3 months and 7 days of prior active service, the applicant enlisted in the Regular Army on 1 February 2005. 3. Orders 333-504 issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell on 29 November 2011 promoted him to the rank/grade of SSG/E-6 effective 1 December 2011. 4. On 20 April 2016 ,while holding the rank/grade of SSG/E-6 and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) failing to go at the time prescribed to his appointed place of duty, to wit: cadre meeting at 0750. His punishment consisted of reduction to the rank/grade of SGT/E-5, a forfeiture of $1,583.00 pay for two months, suspended, to be automatically remitted if not vacated before 13 May 2016; extra duty for 15 days; and an oral reprimand. The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's Official Military Personnel File (OMPF). The applicant did not elect to appeal his punishment. 5. On 15 September 2016, he was honorably retired, in the rank/grade of SGT/E-5 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, based on disability, temporary (enhanced). He completed 11 years, 7 months, and 15 days of active service during this period. 6. The applicant's record does not contain and he does not provide evidence that shows he was promoted to the rank/grade of SSG/E-6 after he received NJP and was reduced in rank/grade to SSG/E-5 on 20 April 2016 and prior to his retirement on 15 September 2016. REFERENCES: 1. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him/her during his/her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist: a. revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, UCMJ, or court-martial; or b. there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily. 2. Under the provisions of Title 10, United States Code section 3964 (10 USC §3964), if you are an enlisted (E-1 through E-9) or warrant officer (W-1 through W-5) retiree with less than thirty years of active service who previously held a higher grade, you can apply for advancement to that higher grade on the retired list.  This applies to former members of the Regular Army, and reserve members of the Army who were serving on active duty at the time of regular retirement.  In the case of members of the National Guard, full-time National Guard duty is considered active duty. 3. Army Regulation 635-8 (Separation Processing and Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. This regulation, in pertinent part, also states the active duty rank and pay grade at the time of separation will be entered in Items 4a and 4b of the DD Form 214, respectively. 4. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant was promoted to the rank/grade of SSG/E-6 on 1 December 2011. The evidence of record shows he received punishment under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty, to wit: a cadre meeting at 0750. His punishment consisted, in part, of a reduction to the rank/grade of SGT/E-5. 2. The applicant’s record does not contain nor did he provide any evidence that shows he was promoted to the rank/grade of SSG/E-6 following his reduction in rank/grade to SGT/E-5 and prior to his discharge from service. 3. The governing regulation states service in the highest grade will not be deemed satisfactory if it is determined that revision to a lower grade was due to punishment pursuant to Article 15, UCMJ. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000877 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000877 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2