MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            22 October 1998   
	DOCKET NUMBER:   AC98-06019

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr.	Loren G. Harrell		Director	
	Mr.	Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms.	June Hajjar		Chairperson	
	Mr.	Fred K. McCoy		Member	
	Ms.	Shirley L. Powell		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, a De Nova review of his request for reconsideration to be advanced on the Retired List to the pay grade of E-7.

APPLICANT STATES:  In effect, that he was unjustly reduced from the pay grade of E-7 for inefficiency by a board that was prejudiced and was improperly constituted.  He further states that there was not a member on the board that had the same branch or qualifications as he did and that the regulations required that such a member be present on the board.  He goes on to state that he didn’t care too much about the issue at the time because he was able to work.  However, he is now unable to work and desires that the promises made to him be kept.  He continues by stating that he was told that he would be advanced on the Retired List to the highest grade held once he had 30 years of service and he desires that to happen.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was inducted on 20 January 1954 and except for short break in service, he remained on active duty until his retirement in the pay grade of E-5 on 28 February 1974.  He had served 20 years and 10 days of total active service.

A review of his records shows that he was promoted to the pay grade of E-6 on 10 August 1966 and was then promoted to the pay grade of E-7 on 20 January 1969.

On 9 June 1970, the applicant after having appeared before a board of inquiry to determine if he should be reduced in grade for inefficiency, determined that he should be reduced to the pay grade of E-6.  Although, the proceedings are not present in the available records, an official order directing the reduction was published by competent authority.

The applicant appealed his reduction for inefficiency to this Board in 1972 citing essentially the same reasons as he is now citing.  The Board denied his appeal on 27 June 1972.  He appealed the decision of the Board in September 1972 and in January 1973.  However, he submitted no new evidence and his requests for reconsideration were denied.

On 27 March 1973, nonjudicial punishment was imposed against the applicant for failure to obey a lawful order from a superior warrant officer and for dereliction of duty.  His punishment consisted of a reduction to the pay grade of E-6, a forfeiture of pay, and extra duty.

On 21 February 1982 the applicant applied to The Secretary of the Army’s Ad Hoc Review Board for advancement on the Retired List in the pay grade of E-7.  The board reviewed his records and opined that based on NJP having been imposed against him on four occasions as well as his being convicted by four court-martials, that his service in the pay grade of E-7 was unsatisfactory.  The board determined on 31 January 1984 that he should be advanced to the pay grade of E-6 on the Retired List.

Title 10, U. S. Code, Section 3964 provides, in pertinent part, that enlisted members of the Regular Army, who are retired before or after the title was enacted, is entitled, when active service plus service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he or she served on active duty satisfactorily, as determined by the Secretary of the Army. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s contentions have been noted by the Board; however, the evidence of record fails to show that he was unjustly reduced for inefficiency or that he has been denied due process.  The Board also notes that his case was reviewed by the Board when the circumstances and evidence were current and no irregularities were found.  Therefore, in the absence of evidence to the contrary and considering the passage of time, it must be presumed that the action’s taken by the Department at the time were appropriate. 

3.  Furthermore, the applicant was granted a separate review by The Secretary of the Army’s Ad Hoc Review Board to determine if he satisfactorily served in the pay grade of E-7.  That board also determined that the applicant had been properly reduced in grade and that he had not satisfactorily served in the pay grade of E-7. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh ____  __fkm___  _slp_____  DENY APPLICATION

						Loren G. Harrell
						Director