MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR2000042337

	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. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 his rank and grade be restored to 
Staff Sergeant/E-6 (SSG/E-6)

APPLICANT STATES:  In effect, that the incident that resulted in his reduction to the rank and pay grade of Sergeant/E-5 (SGT/E-5) was beyond his control and he should not have been held accountable due to the circumstances.  

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

On 31 May 1971, he was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 3914, by reason of retirement.  At the time of his separation, he had completed a total of 20 years and 2 days of active military service and held the rank and pay grade of 
SGT/E-5 and on the following day, 1 June 1971, he was placed on the retired list in that rank and pay grade.  

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates in block 33 (Appointments and Reductions) that on 
15 September 1966, he was promoted to the rank and pay grade of SSG/E-6, which is the highest rank he held while on active duty.  It also verifies that on 
9 March 1971, he was reduced to the rank and pay grade of SGT/E-5 as a result of misconduct. 

The applicant’s record documents no acts of valor, significant achievement , or service warranting special recognition during the period 15 September 1966 through 9 March 1971, the period he served in the rank and pay grade of SSG/E6.  However, during this same period, his record documents an extensive disciplinary history.  This includes the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), on four separate occasions.

As a SSG/E-6, the applicant accepted NJP on the following dates for the following offenses: 2 September 1969, for being AWOL for 6 days; on 
10 February 1970, for leaving his place of duty without proper authority; and on 
1 June 1970, for being late for duty.  In addition, on 23 December 1970, he accepted NJP for failing to comply with his special orders while performing duties as a Sergeant of the Guard.  His punishment for this offense included a reduction to SGT/E-5, which was suspended for 90 days.  

The suspended reduction to SGT/E-5, imposed via the 23 December 1970 NJP action, was vacated on 10 March 1971, via Special Order Number 48, issued by the 15th Artillery Group, Fort Bliss, Texas.  This order directed the applicant’s reduction to SGT/E-5, effective 9 March 1971 and cited Article 15 of the UCMJ as the authority and misconduct as the reason for the reduction action.  There is no indication in the record that the applicant ever appealed either of these NJP or reduction actions.

The DA Form 2339 (Application for Voluntary Retirement), prepared by the applicant, is on file in records.  This form verifies that he submitted his request for retirement on 28 April 1971, with a requested retirement date of 31 May 1971.  On 18 May 1971, the appropriate authority approved his retirement request for 31 May 1971, in the rank of SGT/E-5.  

The record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which was signed by the applicant on the date of his retirement.  This document shows that he was separated, under the provisions of Title 10, United States Code, section 3914, by reason of voluntary retirement.  In addition, at the time of his REFRAD he held the rank of SGT/E-5 and had completed a total of 20 years and 2 days of active military service.

On 22 May 2000, the Army Grade Determination Review Board (AGDRB) determined, based on the applicant’s record of misconduct as a SSG/E-6, that his service in that rank and pay grade was not satisfactory, and voted to deny his advancement on the retired list.

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel.  Section XII provided guidance on the reduction of enlisted personnel and paragraph 7-64 stated, in pertinent part, that misconduct as documented by Article 15 of the UCMJ was a valid reason for taking reduction action on enlisted members in the pay grades of E-6 and below.  

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 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.

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 determination of the AGDRB that the applicant’s service as a SSG/E-6 was not satisfactory and that advancement on the retired list is not warranted.  

2.  The Board also noted and considered the applicant’s contention that he was unjustly reduced from the rank and pay grade of SSG/E-6 for circumstances beyond his control.  However, the Board found this claim lacked merit and was not supported by either the evidence of record or the independent evidence submitted by the applicant.

3.  Lacking evidence to the contrary, the Board is satisfied that the applicant’s reduction form SSG/E-6 to SGT/E-5 was accomplished in accordance with the applicable regulations in effect at the time.  The applicant was reduced as a result of misconduct and there is no information that would suggest that he ever took action to rebut or appeal this reduction action at the time.  Therefore, the Board finds no basis on which to grant the requested relief and concludes that applicant’s restoration to the rank and pay grade of SSG/E-6 is not warranted.

4.  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.

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

__cmf___  ___ew___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042337	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/05/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319 	131.0900	
2.		
3.		
4.		
5.		
6.