IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230002889 APPLICANT REQUESTS: * grade determination to be retired at the highest rank/grade he held which was sergeant major (SGM)E-9 * a personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Noncommissioned Officer (NCO) Evaluation Reports (command sergeant major (CSM/SGM), period covered 1 April 2019 through 30 June 2021 * Medical Evaluation Board (MEB) Narrative Summary (NARSUM), 15 March 2022 * DA Form 3947 (MEB Proceedings), 25 March 2022 * Statement of Trial Results, 28 June 2022 * Statement of Trial Results Findings Worksheet, 28 June 2022 * DA Form 7652 (Disability Evaluation System (DES) Commander's Performance and Functional Statement), 17 August 2022 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 12 September 2022 * Orders Number 280-0127, 7 October 2022 * Email communication, 14 October 2022 * U.S. Army Physical Disability Agency (USAPDA) Check List/Notification for Grade Determination for Physical Disability Cases, 14 October 2022 * Applicant's statements, 14 October 2022 * Enlisted Record Brief, 14 October 2022 FACTS: 1. The applicant states he is requesting a grade determination in order to be retired at the highest rank he held which was SGM/E-9. Based on the trial results, he was to be demoted and told to retire. However, because he was already in a medical board, he was allowed to finish his MEB and be retired medically. He is asking to be retired at the rank/grade of SGM/E9 because he has served his country for 22 plus years impeccably and had a brief lapse in judgment when this incident occurred. He has had five combat tours and as a result of those, he suffers from post-traumatic stress disorder, adjustment disorder, anxiety and depression which he attributes to his lapse in judgment during this time of the incident. 2. A review of the applicant's military record shows the following: a. He enlisted in the Regular Army on 23 February 2000. b. Orders Number 295-1 published by the U.S. Army Human Resources Command (HRC), promoted the applicant to the rank/grade of SGM/E-9, effective on with a Date of Rank (DOR) of 1 November 2018. c. DA Forms 2166-9-3 (Noncommissioned Officer Evaluation Report (Command Sergeant Major (CSM)/SGM)) which covered the period of 1 April 2017 through 30 June 2021, shows the applicant was evaluated in the rank of SGM/CSM (E-9) and received ratings of met standard, exceeded standard, far exceeded standard and highly qualified. d. On 12 September 2022, DA Form 199 shows an Informal PEB found the applicant physically unfit and recommended a rating of 10 percent and that his disposition be "permanent disability retirement." The applicant concurred and waived a formal hearing of his case. e. On 7 October 2022, Headquarters III Corps and Fort Hood published Orders Number 280-0127, which retired the applicant, effective 29 October 2022, and placed him on the retired list in rank/grade of master sergeant (MSG)/E-8, effective 30 October 2020. In pertinent part, the orders show: * Prior grade/DOR: SGM/1 November 2018 * Statute authorizing retirement: 1201 [Title 10, USC, section 1201] * Other eligible laws: 1372 [Title 10, USC, section 1372] * Retirement type and allotment code: PERM DISABILITY/10 * Percentage of disability: 10 f. On 29 October 2022, DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired under the provisions of Army Regulation 635-40, Chapter 4, by reason of "disability, combat related." Item 4a (Grade, Rate or Rank) shows his rank as "MSG" and item 12i (Effective Date of Pay Grade) shows 28 June 2022. g. On 19 May 2023, the Department of the Army published Orders Number 0004802919.00, which assigned the applicant to the permanent disability retired list in the rank of MSG, effective 8 November 2022. 3. In support of his case, the applicant provides the following: a. MEB NARSUM dated 15 March 2022, which shows the applicant's files and records were reviewed. There was no evidence that there had been any changes in the applicant's medical condition(s) since the Integrated Disability Evaluation System examinations were completed. He was referred to the PEB for further adjudication. b. DA Form 3947 dated 25 March 2022, which shows the MEB found the applicant did not meet retention standards for "right foot non-union status post surgeries", and recommended he be referred to a PEB. c. Statement of Trial Results and Findings Worksheet adjudged and signed on 28 June 2022, which show in pertinent part, the following: (1) As a result of a court-martial, the applicant was sentenced to 60 days confinement and reduction to the rank/grade of MSG/E-8. (2) The limitations on punishment contained in the applicant's plea agreement were that "the Military Judge shall adjudge confinement between 30 to 150 days, the sentence may run consecutive or concurrent based on Judge's discretion. The Military Judge shall not adjudge punitive discharge. The Military Judge shall adjudge reduction to at least the rank E-8, and at most the rank E-6." (3) The applicant pleaded guilty and was found guilty of: (a) On one or more occasions, wrongfully compromising, or appearing to compromise, the integrity of supervisory authority or the chain of command, involving, or appearing to involve, the improper use of grade or rank or position for personal gain, engaging in a relationship which was or was perceived to be exploitative or coercive in nature, creating an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission, by engaging in an intimate or sexual relationship with corporal (E-4) . (b) On or about 22 September 2021, with intent to deceive, sign an official sworn statement; to wit: that SGM/E-9 [applicant] had not had, and at that time was not having a romantic or sexual relationship with a Service member; and had not had a Soldier over to his current residence, which statements were totally false, and was then known by the said SGM [applicant] to be so false. (c) On or about 25 September 2021, with intent to deceive, sign an official sworn statement that, he had not given corporal his personal cell phone number, not texted, not called from his personal cell phone number, and not engaged in a romantic relationship or any sexual or intimate activities with corporal ; not been sent any text messages from corporal ; not seen sexual or nude photographs of corporal ; and not asked corporal for any photographs of her, which statements were totally false and were then known by him to be false. (d) Being married at or near Killeen, TX, and on one or more occasions, between on or about 1 July 2021 and on or about 18 September 2021, wrongfully engage in extramarital conduct, to wit: sexual intercourse with corporal (E-4) , a person the accused knew was not the accused's spouse, and that such conduct was of a nature to bring discredit upon the armed services. d. DA Form 7652 dated 17 August 2022, which shows in pertinent part, the applicant's condition did not allow him to deploy or bear any equipment required for training exercises or weapon qualification ranges, and he could not conduct unit physical readiness test or take an Army Combat Fitness Test. e. Email communication dated 14 October 2022, between him, the Medical Command, and USAPDA discussing his request for a grade determination of his physical disability case, and not having enough time for the Army Review Boards Agency to complete the grade determination. He was referred to the Army Board for Correction of Military Records. f. USAPDA Check List/Notification for Grade Determination for Physical Disability Cases dated 14 October 2022, which provides the required administrative documents for a grade determination for physical disability cases. g. Applicant's statements dated 14 October 2022, wherein he states, in pertinent part, he is requesting a Grade Determination to be retired at the highest rank he held which was SGM/E-9. At the end of June 2022, he was reduced in rank to MSG/E-8 due to not being completely truthful on two sworn statements and for also having inappropriate contact with a lower enlisted Soldier. Although the inappropriate contact was initiated by this other Soldier, he understood "because of his rank and actions he was held responsible." h. Enlisted Record Brief dated 14 October 2022, which shows his rank as MSG with a DOR of 28 June 2022. It also provides his personal, personnel, training, and qualification data. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence to show the applicant served at the rank of SGM/E-9 honorably. The Board noted, the applicant plead guilty and was found guilty of egregious misconduct as a senior noncommissioned officer and was reduced to MSG/E08. The Board considered the applicant’s periods of honorable service but agreed there was insufficient evidence of in-service mitigating factors that outweighed his serious misconduct. The Board found the applicant's underlying misconduct and/or substandard performance as clear evidence that his service in grade of SGM/E-9 was unsatisfactory. Furthermore, the Board found the applicant’s PTSD would not cause behavior of cheating on his spouse and having an inappropriate relationship with a lower enlisted Soldier. Evidence further shows his behavioral health issues did not appear to interfere in his judgement as indicated on his MEB. Based on this, the Board denied relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. Army Regulation (AR) 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases based on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 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 (SA). a. The 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, United States Code (USC), 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 one would have been promoted had it not been for the physical disability (that is, was on an approved promotion list) c. Paragraph 2-5 (Unsatisfactory service) states: (1) Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when, reversion to a lower grade was — * Expressly for prejudice or cause * Owing to misconduct * Caused by nonjudicial punishment pursuant to UCMJ, Article 15 * "The result of the sentence of a court-martial" (2) 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. Retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade; however, the underlying misconduct and/or substandard performance can result in a determination that service in grade was unsatisfactory. 3. 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: * 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; * 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; * 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 * 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002889 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1