MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 July 2000
	DOCKET NUMBER:   AR2000043644

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 advanced to the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7) on the retired list.

APPLICANT STATES:  The applicant provided no specific contentions but did submit the enclosed Department of the Army (DA) Form 3713 (Data for Retired Pay) and DA Form 2339 (Application for Voluntary Retirement) in support of his application.  

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

On 31 January 1990, he was released from active duty (REFRAD), in the rank and pay grade of Sergeant/E-5 (SGT/E-5), under the provisions of Chapter 12, Army Regulation 635-200, by reason of retirement for length of service.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that the applicant attained the rank of SFC/E-7 on 14 August 1982, after successfully serving in the rank of Staff Sergeant/E-6 (SSG/E-6) since 13 August 1977.  This block also shows that on 9 December 1986, the applicant was reduced from SFC/E-7 to SSG/E-6 and on 9 August 1988 he was reduced to the rank of SGT/E-5. 

On 9 December 1986, the applicant was convicted by summary court-martial of a violation of Article 134 of the Uniformed Code of Military Justice (UCMJ), by the unauthorized wear of the Combat Infantryman Badge, the Drill Sergeant Badge, and the Airborne Badge.  The resulting sentence included a forfeiture of $950.00;  60 day restriction; and his reduction to the rank of SSG/E-6.

On 9 August 1988, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for submitting a false claim to the government for travel reimbursement.  His punishment for this offense included a forfeiture of $150.00 per month for 2 months; a 45 day restriction; and a reduction to the rank of SGT/E-5.

The DA Form 2339 prepared by the applicant is on file in records.  This form verifies that the applicant submitted his request for retirement on 12 April 1989 and that he requested a retirement date of 31 January 1990.  It also verifies that SFC/E-7 was the highest rank in which he served on active duty.  The appropriate authority approved his retirement request that same day for 
31 January 1990 in the rank of SGT/E-5. 

On 31 January 1990, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Certificate of Release or Discharge From Active Duty), which was signed by the applicant.  This document shows that he was separated, under the provisions of Chapter 12, Army Regulation 635-200, by reason of retirement for length of service.  In addition, at the time of his REFRAD he held the rank of SGT/E-5 and had completed a total of 20 years, 4 months, and 11 days of active military service.

On 23 June 2000, the Army Grade Determination Review Board (AGDRB) convened to consider the applicant’s request for advancement on the retired list. They concluded that the applicant did not satisfactorily serve as a SFC/E-7, the highest rank he held on active duty, because of the summary court-martial conviction he received in that grade.  The AGDRB did, however, determine that he satisfactorily served in the rank and pay grade of SSG/E-6, and approved his advancement on the retired list to that rank and pay grade.  

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.  The legal authority for this action is contained in Title 10 of the Untied States Code, section 3964
(10 USC 3964) which provides the legal authority for the advancement of members on the retired list. 

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 finding that the highest rank in which the applicant satisfactorily served was SSG/E-6, and that he should be advanced on the retired list to that rank and pay grade.  

2.  After carefully examining the evidence or record, the Board finds that the applicant’s service on active duty, in the rank and pay grade of SFC/E-7, was not satisfactory.  This is evidenced by his conviction by summary court-martial while serving in that rank and pay grade.  Therefore, the Board concludes the applicant should not be advanced to the rank and pay grade of SFC/E-7 on the retired list, and that additional relief, beyond that already granted by the AGDRB, is not warranted in this case.  

3.  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.

4.  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

____ja __  __mm___  ___jlp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043644	
SUFFIX		
RECON		
DATE BOARDED	2000/07/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/01/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.