MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 March 2000                  
	DOCKET NUMBER:   AR1999027735

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		Member	

	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, reinstatement (advancement) on the retired list to the highest rank he held while on active duty, sergeant first class (SFC), pay grade E-7.   

APPLICANT STATES:  That he was reduced by court-martial to the rank of staff sergeant (SSG), pay grade E-6, on 4 March 1988.  It has been more than 
10 years since he retired from active duty, and asks that this action be made effective 1 April 1998.  He submits an extract of his record of proceedings by a summary court-martial and his retirement orders.

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

He had 1 year, 11 months and 3 days prior honorable enlisted service in the Army of the United States from 19 June 1967 through 21 May 1969.  This was followed by 8 months and 14 days service in the Army Reserve.  On 6 February 1970, he enlisted in the Regular Army and his service thereafter was honorable until he was released from active duty on 31 March 1988, at the completion of required service for retirement.  On 1 April 1988, he was placed on the Retired List in pay grade E-6, with the rank of SSG.  He was credited with 20 years and 28 days active service and he had 20 years, 9 months and 12 days for pay purposes.  

He had served primarily in military occupational specialties (MOS’s) 11C (Infantry Indirect Fire Crewman), MOS 11F (Infantry Operations Sergeant) and during his last 10 years of service in MOS 13F as a Fire Support Sergeant (Artillery).  The highest rank to which he was promoted was SFC, pay grade E-7, and service from 9 December 1981 through 9 March 1988.  He had one overseas assignment to the Republic of Vietnam, three assignments to Germany and one assignment to Panama.  His awards and decorations included the Meritorious Service Medal, the Bronze Star Medal with “V” device (two awards), the Army Commendation Medal with “V” device, the Army Commendation Medal (for service/achievement, without valor), the Good Conduct Medal (five awards), the National Defense Service Medal, the Vietnam Service Medal, the Army Service Ribbon, the Overseas Service Ribbon (with numeral 4), the Noncommissioned Officer Professional Development Ribbon (with numeral 1), the Republic of Vietnam Campaign Medal with “60” device, and the Combat Infantryman Badge.

The applicant’s military records show that on 6 October 1982 he received nonjudicial punishment  (NJP), under the provisions of Article 15, Uniform Code of Military Justice, while serving in pay grade E-7, for physical assault on a the wife of another soldier, for physical assault on another soldier and two instances of being drunk and disorderly, all incidents occurring on 4 September 1982.  His punishment included a written letter of reprimand and 30 days extra duty.  He did not appeal the punishment.

On 15 May 1984, the applicant was convicted by a summary court-martial of violation of Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program); however, more details are not available.  His punishment included a reprimand and the forfeiture of $250.00 pay.  

On 4 March 1988, in conformance with his plea, he was convicted by a summary court-martial of operating a vehicle, a truck, while drunk on 27 February 1988.  He was sentenced to be reduced to pay grade E-6 and to forfeit $503.00 pay.  

On 10 March 1988, the court-martial convening authority approved only so much of the sentence pertaining to the reduction to pay grade E-6.  

He was released from active duty for the purpose of retirement on 31 March 1988, in pay grade E-6, with a date of rank from 10 March 1988, and was placed on the retired list the next day at the pay grade E-6 level, with the rank of SSG.  

Title 10, United States Code, Section 3961(b) provides, in pertinent part, that unless entitled to a higher retired rank under some other provision of law, a Regular or Reserve of the Army, not covered by subsection (a) (pertaining to officer retirement ranks) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.   

Title 10, United States Code, Section 3964 provides that warrant officers of the Army, enlisted members of the Regular Army, and reserve enlisted members that at the time of retirement are serving on active duty (or in the case of members of the National Guard on full-time National Guard duty), may be advanced on the retired list to the highest rank satisfactory held at the completion of 30 years active and retired service.  The service must be considered satisfactory by the Secretary of the Army.  

On 20 January 2000, the Army Grade Determination Review Board, acting for the Secretary of the Army, determined (COPY ATTACHED) that the highest rank the applicant satisfactorily held for the purpose of computation of retired pay was pay grade E-6.  This determination was made based on his one NJP and two court-martial convictions while serving in pay grade E-7.

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s military records show that he had a highly satisfactory record of service until he was promoted to the rank of SFC on 9 December 1980.  This included service in several overseas assignments, to include the Republic of Vietnam, and he received three awards for valor in a combat zone. 

3.  However, the Board concluded that his service in pay grade E-7 was less than fully satisfactory, as evidenced by his NJP on 6 October 1982 for assaults and drunk and disorderly conduct; his summary court-martial conviction on 15 May 1984 for violation of the Army’s ADAPCP; and a second conviction by a summary court-martial on 4 March1988, less than a month before his retirement, of driving while intoxicated.  

4.  This is supported by the action of the AGDRB, acting for the Secretary of the Army, on 20 January 2000, to deny his advancement on the retired list to the highest rank he had held while on active duty because his conduct in pay grade E-7 was less than satisfactory. 

5.  The Board could find no errors in the court-martial action in March 1988, his resultant reduction and retirement in pay grade E-6, the pay grade in which he was serving on 31 March 1988.  The AGDRB, acting for the Secretary of the Army, has likewise made a determination that his record of misconduct and judicial and nonjudicial punishments over an extended period of time between 1982 and 1988, while serving in pay grade E-7, established a sufficient basis to deny advancement to pay grade E-7 on the retired list, in accordance with the provisions of Federal statute.  

6.  This Board concurs in this determination and finds that 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.

NOTE:

Upon receipt of this action, the Army Review Boards Agency Support Division-
St. Louis, is requested to forward the AGDRB Action Memorandum, dated 
28 January 2000, to the Commander, Army Reserve Personnel Command, ATTN:  ARPC-PSP-T for appropriate action.  

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rgh___  ___mdm_  __jps____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027735	
SUFFIX		
RECON		
DATE BOARDED	20000329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY with NOTE	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.