MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 August 2000
	DOCKET NUMBER:   AR2000036401

	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	
	M . Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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 he be advanced on the Retired List to the pay grade of E-7.

APPLICANT STATES:  In effect, that he should be advanced on the Retired List to the pay grade of E-7, the highest grade he held while on active duty.  He further states that he was reduced from the pay grade of E-7 for hitting a soldier (a private) and was informed by the Judge Advocate’s office in Vietnam that they could defend him if he shot and killed the soldier but all he did was beat him with his pistol once the soldier was disarmed.

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

The applicant initially enlisted on 27 October 1955 and served until he was honorably discharged on 13 October 1958.  He again enlisted on 19 December 1958 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-5 on 19 December 1961 and to the pay grade of E-6 on 25 May 1966.  He was reduced to the pay grade of E-5 on 24 December 1966 and was again promoted to the pay grade of E-6 on 30 September 1967.  He was promoted to the pay grade of E-7 on 20 August 1968.

On 5 March 1970, while serving in Vietnam, nonjudicial punishment was imposed against the applicant for assaulting a private and for making a false official statement.  His punishment consisted of a reduction to the pay grade of E-6.

The applicant appealed his punishment and indicated that while he was sorry for what he had done, the private had threatened his life repeatedly and the stress had become too much.  He contended that the punishment was too harsh and would impose a hardship on his family (wife and three children) as well as drastically reduce his retirement entitlements.  His appeal was denied.

On 31 January 1973 he was honorably released from active duty and was transferred to the Retired List in the pay grade of E-7, effective 1 February 1973. He had served 20 years and 9 days of total active service.

On 6 February 1998, the Army Grade Determination Review Board (AGDRB) reviewed the applicant’s records to determine if he should be advanced on the Retired List.  The AGDRB determined that he had been convicted by two summary courts-martial for being absent without leave (AWOL) and disobeying an order and that nonjudicial punishment (NJP) had been imposed against him on at least five separate occasions for offenses ranging from disobeying a lawful order, inefficiency, dereliction of duty, assault of two foreign soldiers (1969), making a false official statement, and assaulting a subordinate (1970).  The AGDRB further opined that his misconduct in the pay grade of E-7 diminished his service in that grade below satisfactory and determined that he should remain retired in the pay grade of E-6, with no further advancement.

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completing 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

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 this requirement.

2.  In order to be advanced to a higher grade on the Retired List, the applicant must have at some time been properly advanced to and satisfactorily served in a higher grade prior to his being placed on the Retired List.  The Board finds, as did the AGDRB, that his 17 months of serve in the pay grade of E-7 was not satisfactorily served, given that he received NJP punishment twice for assault and for making a false official statement regarding the assault that led to his reduction in grade.  Therefore, there is no basis to advance him on the Retired List.

3.  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

__sw____  __lds____  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000036401	
SUFFIX		
RECON		
DATE BOARDED	2000/08/17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV ON RET LIST	
2.		
3.		
4.		
5.		
6.