ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 October 2019 DOCKET NUMBER: AR20170007205 APPLICANT REQUESTS: correction of his records to show he was separated in the noncommissioned (NCO) rank/grade of sergeant (SGT)/E-5. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Article 16 * DA Form 199 (Physical Evaluation Board (PEB Proceedings) 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 (ABCMR) 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 he believes the error to be unjust in that he was separated as an E-4 because he was separated due to disability with severance pay. The severance pay would have been much higher. He also believes that he should have been promoted back to E-5 but due to lack of interest by his command, that never happened. He was written up one time in 11 years and he believes it was to make an example to his unit. He also had his Article 15 read to him in Iraq, where I could not call anyone or a character witness. He also had a lieutenant colonel give him the Article 15 despite not knowing him, which is unfair. All he is asking is that he gets his E-5 back, and receive the severance pay lost because of it. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 2 November 1995 and reenlisted multiple times. He served in Iraq from July 2005 to July 2006. He was advanced to SGT/E-5. b. On 13 January 2006, the applicant’s battalion commander notified the applicant that he was considering whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) for a variety of violations. c. Having been afforded the opportunity to consult with counsel and understanding his rights, the applicant decided to decline trial by a court-martial and opted for a closed hearing. He further declined a person to speak on his behalf and elected to present matters in his own defense in person. d. On 18 January 2016, the imposing officer found him guilty of violating the UCMJ for falsely making the signature of another person on an endorsement, with intent to defraud, on five separate occasions. His punishment consisted of reduction to specialist (SPC)/E-4, a suspended forfeiture of $1,009 pay, extra duty, and oral reprimand. e. The imposing commander directed filing the DA Form 2627 in the restricted folder of his official military personnel file. The applicant was advised of his right to appeal to the next higher authority; however, the applicant indicated he did not want to appeal. f. On 14 December 2006, an informal PEB considered his medical condition and found it unfitting. The PEB rated his bilateral knee pain at 10% disabling and recommended his separation with entitlement to severance pay. g. He was discharged from active duty on 18 January 2007. His DD Form 214 credited him with 11 years, 2 months, and 17 days of active service during this period. It also shows in: * Item 4a (Grade, Rate or Rank) and 4b (Pay Grade), SPC and E-4 * Item 12i (Effective Date of Pay Grade), 18 January 2006 4. By regulation (AR 600-8-19), per the provisions of 10 USC 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade. 5. By law (10 USC, section 1372), 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 under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is separated. 6. By regulation (AR 635-8), the DD Form 214 reflects the active duty rank and grade held at the time of separation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the applicant’s reduction in rank during his period of military service, the Board concluded that the rank reflected on the applicant’s DD Form 214 was correct and there was insufficient evidence to show justification for making a change to the rank reflected. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. a. The AGDRB considers individual cases that are referred to it in accordance with this regulation. It directs or recommends the final grade determination that affects an individual’s separation or retired pay. The AGDRB decides cases on the evidence of record. It is not an investigative body. AGDRB discussions and individual votes of members are privileged and confidential and will be disclosed only to those individuals in the decision-making process with a need to know. b. Paragraph 2-5 states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: the highest grade was a result of a terminal leave promotion; reversion to a lower grade was expressly for prejudice or cause, owing to misconduct, caused by nonjudicial punishment pursuant to UCMJ, or the result of a sentence of a court-martial; or when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. c. Paragraph 2-6 states if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2–5 applies. d. Paragraph 2-10 states if a Soldier, retiree, or other former Soldier believes an error or injustice has occurred with respect to his or her grade determination, the individual can apply to the Army Board for Correction of Military Records (ABCMR). 3. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proof. 4. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders). NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170007205 3 1