ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: 20170014241 APPLICANT REQUESTS: in effect, correction of his records to show his rank/grade of specialist/E-4 at the time of his retirement for physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Progress Notes/Nursing Discharge Instructions 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 a specialist/E-4 at the time of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB), but immediately prior to his placement on the Temporary Disability Retired List (TDRL), he was demoted to private/E-1 as a result of his receipt of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). b. He feels the cause of his NJP was directly related to his post-traumatic stress disorder (PTSD) and he should not have been reduced in rank. 3. The applicant enlisted in the Regular Army on 7 September 2005 and was awarded military occupational specialty (MOS) 11B. 4. He served two tours in Iraq, from 6 August 2006 through 22 October 2007 and from 27 November 2008 through 27 November 2009, and was awarded the Combat Infantryman Badge. He was promoted to the rank/grade of specialist/E-4 on 7 September 2007. 5. A DA Form 3947 (MEB Proceedings), dated 3 November 2011, show an MEB convened on the date of the form and found the applicant’s diagnosis of PTSD to be medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and referred him to a PEB. His rank/grade at the time of the MEB was specialist/E-4. 6. The applicant’s records contain an Enlisted Record Brief (ERB), dated 27 March 2012, which shows he was demoted to the rank/grade of private/E-1 on 3 February 2012. 7. The source of the applicant’s demotion is not in his available records for review. His Official Military Personnel File (OMPF) does not contain a copy of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) to illuminate the cause for the NJP he states he accepted or the resultant punishment. 8. A DA Form 199 (PEB Proceedings), dated 14 March 2012, shows a PEB convened on the date of the form and found: * his PTSD following two Iraq deployments was found unfitting due to lability of mood and sleeplessness which impair the reliable performance of his 11B MOS * his recommended disability percentage was 50 percent * his recommended disposition was placement on the TDRL with reexamination during December 2012 * his placement on the TDRL was recommended because his disability was not sufficiently stable for final adjudication from a disability percentage perspective * his retirement was based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war an incurring in the line of duty during a period of war as defined by law 9. A Service Computation for Retirement worksheet, dated 27 March 2012, shows the applicant’s Regular Army grade at the time of the computation was E-1 and the highest active duty grade he held was E-4. 10. His DD Form 214 shows he was retired due to temporary (enhanced) disability on 10 April 2012 in the rank/grade of private/E-1, after 6 years, 7 months, and 4 days of net active service. 11. A DA Form 199, dated 13 November 2014, shows an informal PEB convened on the date of the form and shows: * the applicant found physically unfit due to PTSD * a disability rating of 70 percent was recommended * his permanent retirement was recommended * the applicant concurred with the findings * his rank is listed as specialist 12. U.S. Army Physical Disability Agency Order D345-27, dated 11 December 2014, removed the applicant from the TDRL effective the date of the orders and permanently retired him in his current grade of rank with a disability rating of 70 percent. The orders refer to the applicant a specialist. 13. There is no evidence of record the U.S. Army Physical Disability Agency forwarded the applicant’s case to the Army Grade Determination Review Board at the time of his retirement to determine whether he served at a higher grade than that at which he was retired. 14. On 25 October 2017, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. a. The ARBA psychiatrist reviewed the applicant’s military medical records and details a note where the applicant reported to his behavioral health provider on 9 February 2012, that he continued to have PTSD sleep issues and had not been getting enough sleep. He was documented as say that, because of his lack of sleep, he was irritable and impatient and cursed at a noncommissioned officer (NCO) in his unit, resulting his receipt of NJP. A second medical progress note, dated 30 March 2012, also documents that the applicant had received NJP under Article 15 of the UCMJ for “cussing out an NCO.” b. Based on the available information, the applicant appears to have received the NJP which resulted in his demotion to private/E-1 as a result of being irritable and cursing at his NCO. Given that there is a nexus between PTSD and irritability as well as a nexus between PTSD and problems with authority figures, is the medical opinion of the ARBA psychiatrist that the applicant’s condition is mitigating for the offense which resulted in his receipt of NJP and demotion to private/E-1. A copy of the complete medical advisory opinion has been provided to the Board for their review and consideration. 15. A copy of the advisory opinion was provided to the applicant on 27 October 2017, and he was given an opportunity to submit comments, but he did not respond. 16. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 17. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board. a. The Army Grade Determination Review Board (AGDRB) determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability. It 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 AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law under Title 10, U.S. Code, Sections 1212 or 1372. b. A Soldier separating for a physical disability receives severance or retired pay based on the highest of (1) the pay grade at the time of separation, (2) the highest grade satisfactorily served, or (3) the grade to which the Soldier had been approved for promotion. c. If the Soldier is not serving in his or her highest grade or on an approved promotion list to what would have been the highest grade, the Army Physical Disability Agency forwards the disability case to the AGDRB for a determination of whether the Soldier served satisfactorily at a higher grade. Final determinations of grade rest exclusively with the Secretary of the Army and the Secretary’s designee. d. If a Soldier was medically retired or separated in a lower grade without a review by the AGDRB or otherwise believes an error or injustice occurred with respect to his/her grade determination, he/she should apply for a correction of military records to the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the medical advisory finding a nexus between the misconduct and the medical condition of the applicant at the time, which resulted in the Article 15, the Board concluded that restoring the applicant’s rank to Specialist/E4 on the DD214 was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XX XX XX 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 amending the applicant’s DD Form 214 by changing: * Item 4a to show “SPC” * Item 4b to show “E04” 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Soldiers will be placed on the TDRL when they would be qualified for permanent disability retirement and the preponderance of evidence indicates one or more conditions will change within the next 5 years so as to result in a change in rating or a finding of fit. The Army Disability Evaluation System will re-evaluate each Soldier placed on the TDRL at least once every 18 months. b. A final determination of the case of each Soldier on the TDRL will be made at the latest upon the expiration of 5 years after the date when the Soldier was placed on the TDRL. If, at the time of that determination the physical disability for which the Soldier was placed on the TDRL still exists, it will be considered to be permanent and stable. c. If upon reexamination, Soldiers who are not determined fit for duty and meeting medical retention standards for the conditions for which they were placed on the TDRL will be removed from the TDRL and placed on the Permanent Disability Retired List 4. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board. a. The Army Grade Determination Review Board (AGDRB) determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability. It 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 AGDRB for a grade determination, unless the Soldier is entitled to a higher or equal grade by operation of law under Title 10, U.S. Code, Sections 1212 or 1372. b. A Soldier separating for a physical disability receives severance or retired pay based on the highest of (1) the pay grade at the time of separation, (2) the highest grade satisfactorily served, or (3) the grade to which the Soldier had been approved for promotion. c. If the Soldier is not serving in his or her highest grade or on an approved promotion list to what would have been the highest grade, the Army Physical Disability Agency forwards the disability case to the AGDRB for a determination of whether the Soldier served satisfactorily at a higher grade. Final determinations of grade rest exclusively with the Secretary of the Army and the Secretary’s designee. d. If a Soldier was medically retired or separated in a lower grade without a review by the AGDRB or otherwise believes an error or injustice occurred with respect to his/her grade determination, he/she should apply for a correction of military records to the ABCMR. 5. Title 10, USC, section 1372, provides guidance on the grade on retirement for physical disability of members of the Armed Forces. It states 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 TDRL is entitled to the grade equivalent to the highest of the following: a. the grade or rank in which he/she is serving on the date when his/her name is placed on the TDRL or, if his/her name was not carried on that list, on the date when he/she is retired; b. the highest temporary grade or rank in which he/she served satisfactorily, as determined by the Secretary of the Armed Force from which he/she is retired; c. the permanent Regular or Reserve grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired and which was found to exist as a result of physical examination; or d. the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligible 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. 6. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice and implements the Manual for Courts-Martial. It provides that the use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. a. Whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander. Among the kinds of punishment authorized under Article 15 of the UCMJ is reduction in grade. The grade from which the Soldier is reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. When a Soldier is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed. b. Paragraph 3-37b(2) states that for Soldiers in the ranks of specialist or corporal and below prior to punishment, the original DA Form 2627 will be filed locally in unit NJP or unit personnel files unless the Solider has been found guilty of a sex-related offense, in which case the document must be filed in the performance folder in the Soldier’s OMPF. Locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court Martial Convening Authority, whichever occurs first. ABCMR Record of Proceedings (cont) 20170014241 2 1