MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR2000037569

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 to the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7) on the Retired List.  

APPLICANT STATES:  In effect, that he would like consideration for advancement on the Retired List.  He claims that the highest pay grade he held while on active duty was SFC/E-7 and he is now considered disabled for a service connected condition.  He indicates that he was unaware of the provisions of the law which allowed for advancement on the Retired List and he would appreciate any consideration given his case.

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

On 30 November 1973, he was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 3914, by reason of length of service retirement.  At the time of his separation, he had completed a total of 22 years, 6 months, and 20 days of active military service and he held the rank and pay grade of Staff Sergeant/E-6 (SSG/E-6).

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates in block 33 (Appointments and Reductions) that he was first promoted to the pay grade of E-7, as a Platoon Sergeant, on 18 October 1963 and that this is the highest rank he held while on active duty.  It also shows that he was reduced to the rank and pay grade of SSG/E-6 on 7 August 1967 and that he reacquired the pay grade of E-7 when he was promoted to SFC/E-7 on 24 October 1968.  However, he was again reduced to the rank and pay grade of SSG/E-6 on 18 December 1970. 

The applicant’s disciplinary history shows that he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), on nine separate occasions between 1963 and 1972, and that he was convicted by summary court-martial on five separate occasions between 1956 and 1970.  His misconduct also includes his accrual of 12 days of time lost as a result of his being Absent Without Leave (AWOL) on seven separate occasions between 1956 and 1970. 

The record shows that a significant portion of the applicant’s numerous incidents of misconduct took place while he was serving in the pay grade of E-7 and that his two reductions to SSG/E-6 were the result of his misconduct.  Of the nine NJP actions imposed on the applicant, he accepted four while serving as in the pay grade of E-7.  In addition, one of his summary court-martial convictions took place while he held the rank and pay grade of SFC/E-7.  His first reduction resulted from a vacation of an NJP suspended reduction on 7 August 1968, and his second reduction to SSG/E-6, on 18 December 1970, was the product of the suspended reduction portion of a summary court-martial sentence being vacated.

The record contains a properly constituted DD Form 214 (Report of Separation From Active Duty), which was signed by the applicant on the date of his retirement.  This document shows that on 30 November 1973 he was REFRAD under the provisions of Title 10 of the United States Code, section 3914 by reason of length of service retirement.  In addition, at the time of his separation from active duty he held the rank of SSG/E-6 and had completed a total of 
22 years, 6 months, and 20 days of active military service.

On 19 September 1983, the Army Grade Determination Review Board (AGDRB) determined, based on the applicant’s extensive misconduct as an SFC/E-7, that his service in that rank and pay grade was not satisfactory, and they voted to deny his advancement on the Retired List to that grade. 

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). 

Title 10 of the United States Code, section 3964 provides the legal authority for advancement on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 
30 years, to be advanced on the retired list to the highest grade they held and satisfactorily served in while on active duty, as determined by the Secretary of military service concerned. 

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.  The Board concurs with the 1983 determination of the AGDRB that the applicant’s active duty service as an SFC/E-7 was not satisfactory and that he should not be advanced to that rank and pay grade on the Retired List.

2.  The evidence or record shows that the applicant had been reduced as a result of his own misconduct while serving as a SFC/E-7.  His first reduction occurred when an NJP suspended reduction action was vacated and his second reduction was the result of the suspended reduction portion of a summary court-martial conviction being vacated.  Both suspended reductions and their vacations were the result of the applicant’s misconduct while serving in the pay grade E-7, which rendered his service in that rank and pay grade unsatisfactory.  Therefore, the Board finds that the applicant’s advancement to SFC/E-7 on the Retired List is not appropriate nor warranted.

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

__sk____  __ja_____  __reb___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037569	
SUFFIX		
RECON		
DATE BOARDED	2000/08/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1973/11/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.