MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 April 2000                   
	DOCKET NUMBER:   AR2000038955

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		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:  That he be advanced on the retired list to Sergeant First Class (SFC), E-7, the highest grade he held on active duty.

APPLICANT STATES:  That he feels his court-martial was unjust in that he was given more punishment, a reduction to E-4, than the rest of the people who were involved.  His record speaks for itself.  He went from E-4 back up to E-6 in two years time.  

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

He was inducted into the Army on 22 October 1962.  He was promoted to Specialist Five, E-5 on 10 December 1965.

On 17 March 1966, while assigned to Korea, the applicant was convicted by a special court-martial of selling, without proper authority, 3200 gallons of diesel fuel, military property of the United States and of signing a false official record with intent to deceive.  He was sentenced to forfeit $75.00 pay for 6 months; to confinement at hard labor for 6 months, suspended; and to be reduced to pay grade E-3.  The sentence was approved on 19 March 1966.

The applicant served two tours in Vietnam.  During the second tour he received three awards of the Army Commendation Medal (ARCOM) for service – the ARCOM basic for the period 18 March – 1 August 1970; the ARCOM 1st oak leaf cluster for the period 2 August – 10 December 1970; and the ARCOM 2d oak leaf cluster for the period May 1970 – April 1971.  (Army Regulation 600-8-22 states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.)

The applicant was promoted to SFC, E-7 on 17 September 1974.

The applicant was awarded the Meritorious Service Medal (MSM) for service during the period 14 February 1973 – 7 May 1976.

On 26 June 1980, while assigned to Korea, the applicant was convicted by a special court-martial of conspiring with one other E-7, two E-6s and one E-5 to wrongfully dispose of 144 cases of C-rations on 1 April 1980 and, in order to effect the object of said conspiracy, did wrongfully dispose of said property; wrongfully dispose by sale of 144 cases of C-rations on 1 April 1980; and wrongfully dispose by sale of 144 cases of C-rations on 10 April 1980.  He was sentenced to be reduced to pay grade E-4, to forfeit $100.00 pay for 6 months, and to be restricted to the limits of his military compound for 60 days.

The applicant was promoted to Staff Sergeant (SSG), E-6 on 7 December 1981.  He retired on 1 January 1983 in the rank and grade of SSG, E-6.  

In addition to the ARCOMs and MSM noted above, the applicant was awarded four awards of the Army Good Conduct Medal.  (After his initial sets of Army Good Conduct Medal orders were amended, the beginning period of his Army Good Conduct Medals was set at 20 March 1966; however, this was still incorrect.  They should have been amended to begin 20 September 1966.  Army Regulation 600-8-22 states that conviction by courts-martial terminates a period of qualifying service; a new period begins the following day after completion of the sentence imposed by the court-martial.)

Army Regulation 15-80 establishes policies, procedures and responsibilities of the Army Grade Determination Review Board (AGDRB).  Paragraph 1.7 provides that, generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was the result of the sentence of a court-martial.  Paragraph 1.8 states that the AGDRB will consider each case on its own merits and is allowed substantial discretion in reaching its decision.  Determination will be based on the soldier’s overall service in the grade in question.  Pertinent circumstances include the length of time in grade and the performance level.

On 20 March 2000, the AGDRB determined that the applicant did not serve satisfactorily in the grade of E-7 because of his special court-martial conviction.  It determined that the highest grade in which he served satisfactorily for the purpose of computation of retired pay was E-6.

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 the aforementioned requirement.

2.  The applicant served over 5 years in grade E-7 prior to the incidents for which he was court-martialed.  However, the Board concludes that his service in grade E-7 was not so exemplary as to warrant the Board overturning the AGDRB’s determination and granting the relief requested.

3.  The Board notes that the applicant received only one personal decoration while serving as an E-7 and it only covered the early period of his service as an E-7.  

4.  The Board notes the applicant’s contention that he received a harsher      court-martial sentence than his fellow conspirators.  Without having the records of trial available, the Board can make no determination concerning his contention.  The Board does note that on the applicant’s court-martial order, the group was involved only in the 1 April 1980 incident.  The applicant alone was involved in the 10 April 1980 incident.  The Board also notes that while he was an E-5 he had been court-martialed and reduced for a similar offense.  As an E-7 and through experience he knew what the consequences of his offense would be.

5.  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

__eb____  __tap___  __klw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000038955	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.