MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 September 2000
	DOCKET NUMBER:   AR2000039133

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, Jr.		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 rank be restored to the pay grade of E-6.

APPLICANT STATES:  That at the time he was reduced to the pay grade of E-5 his commander was being thrown out of the Army and felt that if he had to go he would do what he could to hurt other people’s careers.  He goes on to state that he was reduced with over 18 years of service because of a foul-up with another officer over some equipment that he (the applicant) had signed for and could not be found.  He also states that at the time he was informed that he could retire in the highest grade he held.

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

The applicant initially enlisted in the United States Army Reserve (USAR) on 30 September 1963 and served in the USAR until he enlisted in the Regular Army on 18 December 1964.  He served until he was honorably released from active duty (REFRAD) on 11 December 1967 and was transferred back to the USAR.

He again enlisted in the Regular Army on 18 September 1968 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 12 June 1977.

On 21 November 1983 nonjudicial punishment (NJP) was imposed against the applicant for failure to obey a lawful order to prepare for an inventory.  His punishment consisted of a reduction to the pay grade of E-5.  The applicant submitted an appeal of the punishment contending that the punishment was too harsh and that punishments given to other soldiers for more serious offenses were not as harsh as his.  His appeal was denied. 

On 4 October 1984, the applicant was notified that after a comprehensive review of his official records, a Department of the Army Selection Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on the presence of one Noncommissioned Officer Evaluation Report (NCOER) covering the period of July 1983 to November 1983 and five records of NJP dated in October 1966, December 1969, January 1975, April 1982 and November 1983.

The NCOER in question was a change of rater report in which he received a score of 80.5 out of a possible 125 points.  It indicated that he had failed the Army Physical Fitness Test and that he did not meet the height and weight standards of Army Regulation 600-9.  It also cited many weaknesses and indicated that he had been enrolled in the overweight program since April 1983 and was making no progress.

The records of NJP consisted of offenses ranging from AWOL, being in an off-limits area, being absent from his place of duty, and failure to obey a lawful order.

The applicant acknowledged receipt of the bar to reenlistment and elected not to submit an appeal; but requested to be allowed to extend to reach his 20 years of service because he had over 18 years of service at the time the bar was imposed.

On 8 February 1985 he submitted his Application for Voluntary Retirement (DA Form 2339) in which he requested retirement for length of service to be effective 1 September 1985. 

On 31 August 1985 he was REFRAD and was transferred to the Retired List in the pay grade of E-5, effective 1 September 1985.  He had served 20 years and 15 days of total active service.

A review of the applicant’s evaluation reports shows that his evaluations as early as August 1982 indicate that he was on the overweight program and that his leadership skills were less than desirable for a person of his grade and experience.  He also received unsatisfactory ratings under oral and written communication skills during his attendance at the field artillery NCO advanced course and subsequent evaluations indicate that he needed specific guidance and close supervision to accomplish tasks. 

Title 10, United States Code, Section 3964 provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held on active duty, 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.  The Board finds that NJP was properly imposed against the applicant in accordance with law and regulations in effect at the time with no indication of any violations of the applicant’s rights.  While the applicant may believe that the punishment was too harsh, he had the option of demanding trial by court-martial whereby he could have asserted his innocence if that were the case.

3.  The Board noted that the applicant had an extensive record of NJP and therefore should have known what his rights were.  It is also noted that he received NJP on two occasions while serving in the pay grade of E-6 and that the last NJP resulted in his reduction to the pay grade of E-5.  Accordingly, the Board finds that his service in that pay grade was not satisfactorily served.   

4.  Although the applicant has not specifically requested advancement on the Retired List to the pay grade of E-6, the Board finds that he should not only not have his pay grade restored to the original date but that he should also not be advanced to the pay grade of E-6 based on his overall record of service in that pay grade.

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

__eja____  __mkp __  ___rvo __  DENY APPLICATION

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

INDEX

CASE ID	AR2000039133	
SUFFIX		
RECON		
DATE BOARDED	2000/09/14	
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.