MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR2000043435

	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 of Sergeant First Class/E-7 (SFC/E-7) be restored.

APPLICANT STATES:  In effect, that his reduction was based on a civil conviction that never happened.  In support of his application, the applicant has provided a local police report from Newport News, Virginia which indicates he has no police record.  

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

On 31 March 1969, the applicant was released from active duty (REFRAD) , under the provisions of Titled 10 of the United States Code, section 3914, by reason of retirement for length of service.  At the time of his separation he had completed a total of 20 years and 20 days of active military service and on 
1 April 1969, he was placed on the retired list, in the rank and pay grade of Staff Sergeant/E-6 (SSG). 

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows, in block 33 (Appointments and Reductions), that on 1 October 1962 he was promoted to the rank and pay grade of SFC/E-7, which is the highest rank he held while on active duty.  In addition, block 33 of the DA Form 20 contains an entry which verifies that, on 18 November 1965, he was reduced to the rank and pay grade of SSG/E-6.

Special Order (SO) Number 183, dated 18 November 1965, issued by Troop Command, United States Army Transportation School, Fort Eustis, Virginia, documents the applicant’s reduction to SSG/E-6 and is on file in his Military Personnel Records Jacket (MPRJ).  This order cites the authority for the reduction action as paragraph 7-3g, Army Regulation 600-200, and the reason as conviction by a civil court.  

These documented service records attest to the fact that the applicant was aware of the reduction action and the basis for it at the time it was accomplished.  There is no information in the record that would suggest that he ever questioned or appealed his reduction to SSG/E-6 from the date of the event, 18 November 1965, until his retirement on 31 March 1969.  

The evidence or record shows that, during the over 3 year period, between 
the date he was reduced to SSG/E-6 and the date of his retirement, the applicant authenticated the contents of his service records, containing the information pertaining to the reduction action, on several occasions.  Most notable among these reviews is an 18 April 1968 audit by the applicant of his DA Form 20, which he verified with his hand written entry of “18 Apr 68” contained in block 48 (Audit Date) of the form. 

The applicant verified the entire contents of his service records, his dates of service, and his rank in conjunction with his application for retirement.  His retirement processing resulted in the preparation of a Statement of Service and a Data for Retired Pay Form, which served to verify his rank and pay grade and his total years of service creditable for retired pay.  He authenticated the information contained in these forms with his signature on his DA Form 2339 (Application for Retirement), dated 16 October 1968.

On 31 March 1969, the date of his retirement, the applicant was issued and signed a Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  This form documents that the applicant was REFRAD, by reason of retirement, in the rank and pay grade of SSG/E-6, after completing 20 years and 20 days of active military service.  There is no indication that the applicant ever questioned the rank and pay grade (SSG/E-6) in which he was being retired and placed on the retired list at anytime during his retirement processing or on the date of his retirement.

The applicant submitted a Police Records Check, dated 22 March 2000, conducted by the Newport News Police Department.  This report indicates that no criminal record was found on the applicant.

On 19 June 2000, the Army Grade Determination Review Board (AGDRB) convened to consider the applicant’s request for advancement on the retired list. They determined that the highest rank and pay grade in which the applicant satisfactorily served was SFC/E-7 and therefore, approved his advancement to that rank and pay grade on the retired list.

Army Regulation 600-200, in effect at the time, prescribed the policy and procedure for the career management of enlisted personnel.  Chapter 7 contained policy guidance pertaining to enlisted promotions and reductions.  Section XII (Reductions) provided the authority for commanders of organizations authorized a commander in the grade of Colonel or above to reduce members in the pay grades of E-7, E-8, and E-9.  It also allowed for the reduction of members within 60 days of notification that they had been convicted by a civil court.  This reduction action could be taken without regard to whether a sentence had been imposed or suspended.  

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 AGDRB determination that the applicant’s 3 years of service in the rank and pay grade of SFC/E-7 was sufficiently satisfactory to warrant his advancement to on the retired list.  However, this finding does not provide support for a revocation of his reduction to SSG/E-6 and full restoration to the rank and pay grade of SFC/E-7.

2.  The Board noted the negative criminal record report provided by the applicant; however, it finds this criminal record check, completed some 35 years after the fact, is not sufficient to overcome the presumption that what the Army did in the original reduction action was correct.  Lacking evidence to the contrary, the Board is convinced that the applicant’s reduction to SSG/E-6 was accomplished in accordance with the applicable regulations in effect at the time.

3.  The evidence or record shows that the applicant’s reduction was immediately made a part of his official service record.  The reduction order was included in his MPRJ and the appropriate entry was made in block 33 of the DA Form 20.  In spite of this, there is no information that would suggest that the applicant ever took action to rebut or appeal his reduction at the time it was accomplished.  Further, the applicant verified the reduction information through record audits he accomplished subsequent to the reduction action, the last one taking place on 
18 April 1968.

4.  In the opinion of the Board, it is unreasonable to conclude that the reduction action was unjust or accomplished for no valid reason.  This conclusion is supported by the fact that the applicant continued to serve on active duty for 
3 years subsequent to his reduction and went through all his retirement processing without ever having raised his reduction as an issue.

5.  Finally, the Board concludes that the applicant’s acceptance of the reduction action, without appeal, and his subsequent active duty service and retirement in the rank and pay grade of SSG/E-6, attests to the validity of the action.  Further, the Board finds there is no evidentiary basis which would support a revocation of the applicant’s reduction to SSG/E-6.  

6.  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.

7.  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	AR2000043435	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1969/03/31	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.