MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000
	DOCKET NUMBER:   AR2000036258

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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, that a 1977 nonjudicial punishment (NJP) action taken, under the provisions of Article 15 of the UCMJ, be overturned.  In addition, he requests to be advanced on the retired list to the rank and pay grade of master sergeant/E-8 (MSG/E-8) and that his top secret security clearance be reinstated.  He also requests that he be considered for advancement to the rank and pay grade of chief warrant officer/W-4 (CW4) on the retired list.

APPLICANT STATES:  In effect, that when he attempted to be released from recruiting duty without penalty based on family problems, which he had been promised was an option, he was denied by his commander.  He claims the reason was that his commander could not justify his release given he was a such a successful producer.  

He states he was given the option by his commander to accept a charge of misappropriation of government property based on an illegal phone call, which would provide justification for his reassignment.  He contends that he was not advised and did not understand the consequences of accepting field grade NJP versus company grade NJP, which resulted in his record being seriously blemished from that time on.  

He indicates that he was passed over for promotion in 1977 and he retired in 1983.  He also indicates that prior to the problems outlined above he was already six years behind his peer group because of systemic problems.  These problems included being passed over for promotion by a supervisor in 1966 because he was leaving the unit for Vietnam and would be promoted there; after he arrived in Vietnam he was medically evacuated prior to being promoted; his injury resulted in his being medically unqualified for promotion and remained frozen until cleared by the process in 1968 when he was promoted; in the years 1972 through 1975 he was facing separation by the Army’s newly implemented up or out policy because his primary MOS was overstrength and he was not promoted until 1975. 

The applicant’s enclosed expanded statement outlines positions of responsibility in higher grades in which he served and supports these claims with the enclosed letters of appreciation and commendation, which he contends support his requests.

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

On 30 September 1983, he retired from the Regular Army after completing 
20 years, 6 months, and 13 days of active military service.  At the time of his retirement the applicant held the rank and pay grade of staff sergeant/E-6 (SSG/E-6) and served in military occupational specialty 51H (Construction Engineer).

On 24 February 1977, the applicant accepted field grade NJP for wrongfully and unlawfully obtaining services from the United States Government.  His punishment for this offence included an oral reprimand and a forfeiture of $200.00 per month for 2 months.  The applicant accepted the NJP and elected not to appeal the action.

The record shows that the Department of the Army (DA) Form 2627 (Record of Proceedings Under Article 15, UCMJ) issued for this NJP action was filed in the restricted (R-fiche) portion of the applicant’s Official Military Personnel File (OMPF).  This rendered the NJP action a non-factor in any subsequent personnel management decisions made on the applicant.  In particular, the 
R-fiche is not made available for review by sergeant first class/E-7 (SFC/E-7) or MSG/E-8 DA promotion selection boards.  

The applicant’s Department of the Army (DA) Form 2-1 (Enlisted Qualification Record) indicates in block 18 (appointments and reductions) that the applicant attained the rank of SSG/E-6 on 13 June 1975.  Notwithstanding his assignments working in positions authorized a higher rank and pay grade, there is no indication that he ever had actually held or satisfactorily served in a higher grade while on active duty. 

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in records.  This form verifies that the applicant submitted his request for retirement on 5 August 1983 and that he requested a retirement date of 30 September 1983.  On 11 August 1983, the appropriate authority approved his retirement request for 30 September 1983 in the rank of SSG/E-6. 

The available records contains no indication that the applicant’s security clearance was revoked prior to his retirement.  The latest DA Form 2 
(Personnel Qualification Record, Part 1) available in the record is dated 18 March 1983 and shows that the applicant held a top secret clearance on that date.  The DA Form 873 (Certificate of Clearance and/or Security Determination) indicates that the applicant held a top secret clearance and that this clearance was validated on 21 March 1980.  There is no entry on this form withdrawing the applicant’s clearance.  

On 30 September 1983, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Certificate of Release or Discharge From Active Duty), which was signed by the applicant.  This document shows that he was separated, under the provisions of Title 10, United States Code, section 3914, by reason of length of service retirement.  In addition, at the time of his REFRAD he held the rank of SSG/E-6 and had completed a total of 20 years., 6 months, 13 days of active military service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).  

Paragraph 12-6 (Advancement on the Retired List) of the regulation contains guidance on the advancement of soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no provisions for advancement of individuals who held a different rank title if they were retired in the appropriate pay grade.  

Paragraph 12-8d states, in pertinent part, that soldiers who have an approved retirement are in a non-promotable status and further that they will not be promoted unless a request for withdrawal of their retirement application has been approved.

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.  After careful evaluation of the evidence of record and the independent evidence submitted by the applicant, the Board determined there was no basis for overturning the NJP action accepted by the applicant in February 1977, to reinstate his security clearance status, or to advance him on the retired list.

2.  The NJP action accepted by the applicant in February 1977, without appeal, was filed on the R-fiche, which is the restricted portion the applicant’s OMPF.  Therefore, it was not a factor in any subsequent personnel management decisions made on the applicant, to include DA promotion/selection board consideration.  

3.  In addition, the available records contain no evidence to verify that the applicant’s security clearance was removed prior to his separation.  Even if it had been, this would not have impacted his promotion status.  The applicant had an approved retirement, which placed him in a non-promotable status.  Thus, the Board concludes that there is no basis for granting the relief requested by the applicant, and further that there is no effective relief to gained by the applicant by granting relief on these issues. 

4.  The Board also determined that the applicant’s advancement on the retired list, to any grade, is not warranted.  Notwithstanding his having served in positions calling for a higher pay grade, by law and regulation, advancement of soldiers on the Retired List is only authorized when a member has held and satisfactorily served on active duty in a higher pay grade.  Given the applicant was never promoted to a higher pay grade while on active duty, the Board concluded that he was not entitled to advancement on the retired list.

5.  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 this requirement.

6.  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

__mvt___  __owt___  __kan ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036258	
SUFFIX		
RECON		
DATE BOARDED	2000/06/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1983/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.