MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 July 2000
	DOCKET NUMBER:   AR2000037366

	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. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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 an unjust Letter of Reprimand (LOR) be removed from his Official Military Personnel File (OMPF) and that he be advanced on the Retired List. 

APPLICANT STATES:  In effect, that the LOR filed in his Official Military Personnel File (OMPF) was unjust because he had been cleared of any wrongdoing in the incident documented in the LOR by his former commander, and was given the LOR by a subsequent commander who reopened the case.  In addition, he continued to serve on active duty from 1976, when he received the LOR, until his retirement in 1984 and he never received another promotion.  He claims that his Enlisted Evaluation Reports (EERs) should be reviewed and he should be promoted and advanced on the Retired List accordingly.

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

He entered the Regular Army on 22 November 1963 and continuously served on active duty until his release from active duty (REFRAD) on 31 October 1984.  At the time of his REFRAD the applicant held the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7).  

On 17 September 1976, the applicant was issued a LOR by his unit commander, for his engaging in a pattern of behavior calculated to provoke a junior soldier into a fight over the affections of a German girl that both were dating.  The unit commander also commented on the fact that the applicant was married and his wife and three children accompanied him on this assignment only served to magnify and aggravate his pattern of behavior, which was unacceptable for a Noncommissioned Officer (NCO).  The unit commander advised the applicant that he was recommending the LOR be filed in his OMPF.

On 16 September 1976, the applicant completed a 1st endorsement to the LOR in which he acknowledged that the LOR had been personally explained to him and that he understood the actions which could be taken against him.  In addition, he stated his election not to submit a statement in his own behalf.  In a second endorsement, the Commanding General (CG) of the 1st Infantry Division Forward, directed the filing of the LOR and allied papers in the applicant’s OMPF and forwarded the documents for filing accordingly.

A United States Army Enlisted Records and Evaluation Center (USAEREC) Form 10A (Enlisted Evaluation Data Report), dated 19 June 1983, on file in the applicant’s Military Personnel Records Jacket (MPRJ), shows that his Enlisted Evaluation Report Weighted Average (EERWA) was 116, while the average EERWA for personnel serving in his military occupational specialty (MOS) and pay grade was 123.  

The last EER on file in the applicant’s record was a Change of Rater report he received, which covered the period from November 1982 to July 1983.  In this EER, the Indorser placed the applicant in the three block (Do Not Promote) in Part IV (Evaluation of Potential).  In addition, Part VI (Score Summary) of the EER shows that the applicant was given an overall report score of 111 by his rater and 77 by his Indorser.  This resulted in an overall report score of 94.  This EER made the applicant even less competitive with his contemporaries, as evidenced by the last USAEREC Form 10A on file.  This data report, dated 
27 January 1984, showed that his EERWA was 108 and the EERWA for his MOS and pay grade was 123.  

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that the applicant attained the rank of SFC/E-7 on 17 March 1976.  It gives no indication that the applicant was ever promoted to or held a higher rank and pay grade while serving 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 8 March 1984 and that he requested a retirement date of 31 October 1984.  On 2 July 1984, the appropriate authority approved his retirement request for 31 October 1984, in the rank of SFC/E-7.

On 31 October 1984, the applicant was honorably REFRAD.  The record contains a properly constituted Department of Defense (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 chapter 12, Army Regulation 635-200, by reason of voluntary retirement.  In addition, the DD Form 214 verifies that at the time of his REFRAD he held the rank of SFC/E-7 and had completed a total of 20 years, 11 months, and 9 days of active military service.

Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Paragraph 7-2 (Policies and Standards) states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

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) 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 on the retired list of individuals who served in a position calling for a higher pay grade but who were never actually promoted to or held that higher rank and pay grade while serving on active duty.

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 carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board finds no basis for granting the relief requested by the applicant.  The evidence of record shows that the processing of the 17 September 1976 LOR, issued to the applicant, was accomplished in accordance with applicable regulations and that the proper authority reviewed the LOR and accompanying documents, which resulted in the determination that these documents be filed in the applicant’s OMPF.  

2.  By regulation, once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The Board finds that the applicant has failed to submit clear and convincing evidence sufficient to overcome this burden of proof.  Therefore, there is no basis for removing the LOR in question from the applicant’s record. 

3.  In addition, a review of the applicant’s EER report file reveals his EERWA was below that of his contemporaries, which shows that the applicant was not competitive for promotion to a higher grade on this basis.  

4.  The record also shows that the applicant was never actually promoted above the rank of SFC/E-7 while serving on active duty.  By law and regulation, advancement of soldiers on the Retired List is only authorized if a member actually held and satisfactorily served in a higher pay grade.  Given the applicant was never promoted to or held a pay grade above E-7, advancement on the Retired List to a higher grade is not appropriate.  Therefore, the Board concluded that the requested relief is not warranted in this case.

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

___klw __  ___sac__  ___amc__  DENY APPLICATION

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

INDEX

CASE ID	AR2000037366	
SUFFIX		
RECON		
DATE BOARDED	2000/07/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1984/10/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  329	134.0100	
2.  319	131.0900	
3.		
4.		
5.		
6.