MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 October 2000
	DOCKET NUMBER:   AR2000043243

	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:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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 restored to the pay grade of E-6 and placed on the Retired List in that pay grade.

APPLICANT STATES:  In effect, that while he is not saying that he did nothing wrong, because he did, in 1980 he made a mistake that has affected him and his family ever since and is something he thinks of daily.  He further states that he is suffering from bad vision and hearing and has diabetes.  He also states that all of his medical problems are service related.  He goes on to state that he gave the Army over 20 years of his life and with one exception, he does not regret any of it.  He continues by stating that while he was not the best soldier, he was loyal to the Army and his country and desires to have his rank restored.

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

He initially enlisted in Indianapolis, Indiana on 19 January 1961 and served until he was honorably released from active duty on 22 December 1963 and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

He again enlisted on 22 December 1964 for a period of 3 years and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 6 February 1974.

On 4 April 1975 nonjudicial punishment was imposed against him for being absent from his place of duty.  His punishment consisted of a reduction to the pay grade of E-5 (suspended for 6 months) and extra duty.  On 7 May 1975, the suspended punishment was vacated and he was reduced to the pay grade of    E-5.

He was again promoted to the pay grade of E-6 on 18 May 1978.

On 12 March 1981, while stationed in Germany, the applicant was convicted by a General Court-Martial of taking indecent liberties with a female under 16 years of age who was not his wife on 1 February 1980 and of wrongfully committing an indecent, lewd, and lascivious act with a female under the age of 16, who was not his wife on 18 January 1980.  He was sentenced to a reduction to the pay grade of E-1, confinement at hard labor for 1 year, and a Bad Conduct Discharge (BCD).  However, the convening authority approved only so much of the sentence as provided for a reduction to the pay grade of E-1 and confinement at hard labor for a period of 1 year.  The convening authority also suspended the confinement at hard labor until 15 November 1981 unless sooner vacated.

On 31 July 1981, while pending appellate review, the unexecuted portion of his sentence pertaining to confinement at hard labor was remitted.

On 3 November 1981 the applicant submitted a Voluntary Request for Retirement (DA Form 2339) in which he requested retirement by reason of length of service to be effective 1 February 1982.  His request was approved on 24 November 1981.

The applicant was advanced back to the pay grade of E-4 on 1 January 1982.  He was honorably released from active duty on 31 January 1982 and was placed on the Retired List in the pay grade of E-4 effective 1 February 1982.  He had served 20 years and 13 days of total active service.

On 6 December 1982, as a result of his appellate review, the appellate authority set aside specification 2 of Charge II (wrongful commission of an indecent, lewd and lascivious act) and affirmed his reduction to the pay grade of E-1 based on the guilty finding of specification I of Charge II. 

Title 10, United States Code, 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 the aforementioned requirement. 

2.  The applicant was properly reduced in grade pursuant to a sentence by a General Court-Martial with no indication of any violations of any of the applicant’s rights.

3.  The applicant was properly retired in the grade in which he was serving in at the time he was placed on the Retired List and he has failed to convince the Board that further advancement is warranted. 

4.  While the Board has noted the applicant’s contentions, the Board finds that given that he was reduced from the pay grade of E-6 on two occasions and given the circumstances surrounding his last reduction, the Board finds that his service as a noncommissioned officer was unsatisfactory.  Accordingly, the Board finds that his placement on the Retired List in the pay grade of E-4 is appropriate and does not warrant further advancement.

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

___mmd_  ___ao___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043243	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/26	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000/REDUCTION IN GRD	
2.		
3.		
4.		
5.		
6.