MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  15 June 2000
	DOCKET NUMBER:   AR2000036677

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Ms. Kathleen A. Newman		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: That his records be corrected to show that he was serving in pay grade E-7 at the time of his separation and retirement. 

APPLICANT STATES: That he was “set up by the 369 AG Bn”.  He feels that receiving nonjudicial punishment (NJP) and removal from the Sergeant First Class Selection List creates an injustice.  He alleges that a civilian judge and an Army lawyer advised him that the act for which he received NJP was self- defense.  He indicates that his wife (also the victim for whom NJP was administered and his superior noncommissioned officer (NCO)) and his commanding officer told him the NJP would not affect his promotion to pay grade E-7.

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

During the period 9 to 20 September 1976, he was a member of the Army Reserve Delayed Enlistment Program.

On 21 September 1976, he enlisted in the Army.  He completed his required training and was awarded MOS 11C (Infantry Indirect Fire Crewman).  He was promoted to pay grade E-6, effective 1 February 1990.

On 4 April 1996, he unlawfully struck a superior female NCO (his spouse) and his records were flagged pending disciplinary action.

On 1 May 1996, the Commander, Total Army Personnel Command (TAPC), promoted him to SFC.  His promotion orders specified that he must be in a promotable status.

On 16 July 1996, he accepted NJP under Article 15, Uniform Code of Military Justice for striking a superior NCO.  His punishment included the forfeiture of $990 pay per month for 2 months (the excess of $100 was suspended until       15 August 1996) and extra duty for 30 days.

The Commander, TAPC revoked his promotion based on not being in a promotable status.

On 13 March 1997, a Standby Advisory Board directed his removal from the Sergeant First Class Selection List based on his NJP. 

On 30 September 1997, he was honorably separated, in pay grade E-6, based on Army Regulation 635-200, chapter 12 and transferred to the Retired Reserve the following day.  His DD Form 214 indicates he had 20 years and 10 days of creditable service.

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.  There is no evidence of record to substantiate the allegations of being “set up” by personnel within his unit nor is there evidence that he was told NJP would not affect his promotion status.

2.  The applicant was not in a promotable status on the effective date of promotion to pay grade E-7, therefore, the removal was valid.

3.  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.

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

________  ________  ________ DENY APPLICATION

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

INDEX

CASE ID	AR2000036677	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.133	Promotion to pay grade E-7	
2.		
3.		
4.		
5.		
6.