MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR2000040356

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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.

APPLICANT STATES:  That he retired from the Army as an E-5.  He was placed on probation for 10 years.  He was told that after the probation period his original rank of SFC would be reinstated.

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

After having had prior service during which he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions and had 23 days of lost time, he reenlisted in the Regular Army on    10 January 1968 in the rank of Specialist Four, E-4.

The applicant was promoted to Staff Sergeant (SSG), E-6 on 20 March 1970. 

On 20 August 1970, the applicant accepted NJP under Article 15, UCMJ for speeding.

On 1 February 1971, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

On 22 June 1972, the applicant accepted NJP under Article 15, UCMJ for failing to be at his proper place of duty.

On 17 May 1978, the applicant was promoted to SFC. 

On 17 October 1980, the applicant was convicted by a special court-martial of possession of marijuana with intent to sell and sale of marijuana to another service member off post with intent of having that service member sell marijuana on post.  The offenses had been committed on 8 July 1980.  He was sentenced to be reduced to pay grade E-5.

On 1 August 1981, the applicant retired in the rank and grade of Sergeant, E-5.

Title 10, U. S. code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.

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 25 February 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 this requirement.

2.  The applicant served a little over 24 months in grade E-7 prior to the incidents for which he was court-martialed.  The Board concludes that his service in grade E-7 was neither so exemplary nor so lengthy as to warrant the Board overturning the AGDRB’s determination and granting the full relief requested.

3.  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

__slp___  __lem___  __aao___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040356	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.