PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           17 November 1999   
	DOCKET NUMBER:   AR1999024448

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

	Mr. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Ted S. Kanamine		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be placed on the retired list in pay grade E-6 instead of pay grade E-5.

3.  The applicant states he has paid for whatever wrong he may have done but continues to aver that the punishment was unduly harsh.  He contends that he declined the restoration of rank as he had only a month left on his enlistment and felt it should go to someone who would be remaining in the unit.  He believed that he would retire in pay grade E-6 upon reaching age 60.  He states that it is an injustice to continue to penalize him for the rest of his life for this incident.

4.  The Memorandum of Consideration reflecting the Board’s 23 August 1995 review of the applicant’s request is incorporated herein by reference as if wholly set forth.

5.  The applicant’s record has become lost or misfiled and is not available.  However, the applicant’s request and statements are consistent with the information available and the information that was available at the time on the prior review.

6.  The applicant submits statements from three fellow NCO’s who were present, have personal knowledge of the incident, the policy in effect and/or subsequent actions.  These statements attest to the fact that it was an authorized practice to allow NCO’s to maintain their uniforms at home and that inspections were announced and scheduled to allow the NCO’s to bring in all necessary items of gear.  Further, one statement indicates that when the unit commander was made aware of the policy he choose not to take corrective action.  This statement corroborates the applicant’s contentions that he complied with the order to get his uniforms and return for inspection, but upon return the unit commander had already departed.

7.  As noted in the prior review, the applicant’s National Guard Bureau Report of Separation and Record of Service shows that the highest grade successfully held was E-6.

8.  In the process of review of this case, a review by the ARBA legal advisor was obtained.  In that review it was opined that it would be in the interest of equity and justice to correct the applicant’s records to reflect he is entitled to retirement benefits at the pay grade E-6 and to back pay and allowances.

CONCLUSIONS:

1.  The limited records available show that the applicant while serving as a staff sergeant was reduced in grade for failure to stand a locker inspection and disobeying a direct order.

2.  However, the evidence submitted shows that the applicant did stand the inspection, was ordered to go home and get his uniforms and return for completion of the inspection.  The evidence shows that he did as ordered, however, upon return to the unit, the officer conducting the inspection had already departed.

3.  In the absence of records it must be presumed that the reduction was administratively proper, however, the Board believes that the reduction was unduly harsh and to continue penalize the applicant in an injustice.

4.  In view of the foregoing findings and conclusions, the interest of justice would be served by correcting the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected;

a.	by showing that effective 20 January 1995, the individual concerned was entitled to receive Reserve Retirement pay as a staff sergeant (E-6); and,

b.	by authorizing back pay from the earliest possible date consistent with the statute of limitations and any appropriate offsets.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__cmf___  ___jns___  ___tsk__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Calvin M. Fowler_________
		        CHAIRPERSON

INDEX

CASE ID	AR1999024448	
SUFFIX		
RECON	 	
DATE BOARDED	19991117	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	
GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.