ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 May 2019

	DOCKET NUMBER:  AR20170012314


APPLICANT REQUESTS: reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20140020173 on 28 April 2016.  Specifically, he requests the changing of rank/grade to Sergeant (SGT/E-5) in accordance with the medical board/retire regulation which was to take effect upon being honorably medically discharged.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DA Form 4856 (Developmental Counseling Form) dated 8 February 2011
* Order D 324-17 dated 20 Nov 2014

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 AR20140020173 on 28 April 2016.

2.  The applicant states/request that his rank/grade be changed to SGT/E-5 to reflect the medical board/retire regulation which was to take effect upon being honorably medically discharged on 11 May 2011.

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

   a. He enlisted in the Regular Army on 27 March 2000 and subsequently completed training resulting in him being awarded the military occupational specialty 91W (Metal Worker). 

b. On 7 October 2008 he was court martialed and found guilty of:

* committing an assault upon Ms. N.M. by strangulation with a means and force likely to produce death or grievous bodily harm on or about 9 December 2007

* unlawfully striking Ms. N.M. on the head repeatedly with a closed fist on or about 9 December 2007

* unlawfully entering the dwelling house of Ms. N.M. with intent to commit kidnapping on or about 9 December 2007

   c. On 15 April 2008, his sentence was adjudged with the approved sentence including a rank reduction from SGT to Private (E-1), 6 month confinement and the forfeiture of $898.00 in pay for 4 months.

   d.  On 6 April 2009, the separation authority abated the applicant's administrative separation based on the commission of a serious offense and directed his PEB processing.

e. On 1 July 2009, he was advanced to the rank/grade of Private (PV2/E-2)

   f. His DA Form 199, dated 24 August 2009, shows the Fort Lewis PES evaluated him for asthma and found him fit for duty. On the same date, he concurred with the PES finding and recommendation and the finding and recommendation were approved.


   g. On 18 November 2009, the Office of the Judge Advocate General Criminal Law Division completed the appellate examination of his general court-martial. His record of trial was determined to be legally sufficient and supported the findings. The findings and sentence were final and conclusive.

h. On 1 December 2009, he was advanced to the rank/grade of
Private First Class (PFC/E-3).

i. On 1 June 2010, he was advanced to the rank of SPC.

j. On 11 January 2011, the applicant requested a grade determination.

   k. On 8 February 2011 the applicant was counselled on a DA Form 4856 by his supervisor referencing his non-recommendation for promotion due to his pending medical retirement date of 9 April 2011resulting in his inability to meet the 1 year remaining service requirement as stated in AR 600-8-19 (Enlisted Promotions).

   l. On 8 February 2011, he was released from assignment and duty because of physical disability effective 8 May 2011 in the rank of SPC and placed him on the Temporary Disability Retirement List (TDRL) effective 9 May 2011.

   m. On 15 February 2011, the Army Grade Determination Review Board determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement or separation pay was the grade he held at the time of his disability separation or disability retirement.

   n. His DD Form 214 reflects a separation/retirement date of 8 May 2011 for temporary disability.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant making a change to the applicant’s rank.  

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 Army Board for Correction of Military Records (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 (AR) 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board. The Army Grade Determination Review Board determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retired pay, and separation for physical disability

   a. Paragraph 2-4 states that the Army Grade Determination Review Board will consider each case on its own merits. Circumstances pertinent to whether such service is found satisfactory include, but are not limited to: medical reasons which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance; compassionate circumstances, or lengths of time in grade; performance level as reflected in evaluation reports and other portions of the service record that reflect performance; nature and severity of misconduct, if any; and the grade at which the misconduct was committed.

   b. Paragraph 2-5 states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when:

(1)   the highest grade as the result of a terminal leave promotion;

(2)   reversion to a lower grade was:

•  expressly for prejudice or cause
•  owning to misconduct
•  caused by nonjudicial punishment pursuant to the Uniform Code of
   Military Justice, under the provisions of Article 15
•  the result of the sentence of a court-martial

   c. Paragraph 2-7 states all active duty or active Federal service may be considered as continuous, or each period of duty may be considered separately if it is to the Soldier's benefit, unless a specific interpretation is required by statute. "Satisfactory service" is defined as service absent of any negative personnel or Uniform Code of Military Justice action. The length of time of satisfactory service for enlisted Soldiers is not specified in law or regulation when there are no negative personnel or Uniform Code of Military Justice actions.

d.  Paragraph 3-3 states an enlisted Soldier being processed for physical
disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the Army Grade Determination Review Board for a grade determination unless the Soldier is entitled to a higher or equal grade by operation of law (Title 10, USC, sections 1212 and 1372

2.  Title 10, USC, section 1204, defines retirement for members serving on active duty for 30 days or less or performing inactive duty training. Upon a determination by the Secretary concerned that a member of the Armed Forces not covered by sections 1201, 1202, or 1203 of this Title is unfit to perform duties of his office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title, if the Secretary also determines the disability is:

a. based upon accepted medical principles and is of a permanent nature and stable

b. a result of an injury, illness, or disease incurred or aggravated the in line of duty

   c. not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and 

   d. at least 30-percent disabling under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of determination

3.  AR 600-8-19 (Enlisted Promotions and Reductions) para 1-20 (Promotion of Soldiers pending referral to a military occupational specialty/medical retention board, medical evaluation board, or physical evaluation board) dated 30 April 2010 states: 

   a. Soldiers who are pending referral to a MOS/medical retention board (MMRB) under AR 600–60 or referral to a medical evaluation board under AR 40–400 or physical evaluation board under AR 635–40 will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion.

   b. Soldiers who have been conditionally promoted but are unable to meet the condition of their promotion solely because of a medical condition that results in a finding of unfit by the Physical Disability Evaluation System (PDES) will not be subject to administrative reduction if otherwise qualified to retain promotable status.

   c. Per the provisions of 10 USC 1372, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. Further, the Soldier will be promoted to the designated grade effective the day before placement on the retired list.
      
   d. 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. Further, the Soldier will be promoted to the designated grade effective the Soldiers separation date.
      
   e. The guidance at paragraph 1–20c and d also pertains to Active Army Soldiers who have reached the time-inservice requirements for the next level of automatic promotion (PV2 to SPC).

4.  Paragraph 1-26 (Counseling of Soldiers not recommended for promotion) states that First-line leaders will counsel Soldiers who are eligible for promotion to PV2 through SSG without a waiver (fully qualified) but not recommended in writing. Counseling will take place initially when the Soldier attains eligibility, and at least every 3 months thereafter, and include information as to why the Soldier was not recommended and what can be done to correct deficiencies or qualities that reflect a lack of promotion potential.

5.  Paragraph 7-8 (Service remaining obligation) states that the following service remaining obligations, from effective date of promotion, are required for promotion to SGT through SGM:

   a. to SGT and SSG, 1 year - service will be obligated from the effective date of promotion and Soldiers must extend or reenlist in order to accept the promotion. 

b. Soldiers are exempt from this requirement if they are—

* Eligible through prior service for higher pay grade at time of retirement.

* Able to serve at least 6 months in the grade but will be involuntarily separated due to medical disqualification, action by a nonpunitive board, or 

* will reach their maximum years of service by grade (RCP), or maximum age.


ABCMR Record of Proceedings (cont)	 AR20170012314


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