MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 July 2000
	DOCKET NUMBER:   AR2000043646

	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 on the retired list to the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, the applicant made no specific contentions.  However, he did request to be advanced on the retired list via a Department of Defense (DD) Form 149 (Application for Correction to Military Records).  His application included, as an enclosure, a Department of the Army (DA) Form 
2339 (Application for Voluntary Retirement) which indicates, in block 
6 (Highest Grade Served on Active Duty), that the highest grade in which he served on active duty was SFC/E-7.  

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

On 31 July 1987, he was released from active duty (REFRAD), in the rank and pay grade of Specialist Four/E-4 (SP4/E-4), 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 11 June 1981, after successfully serving in the rank of Staff Sergeant/E-6 (SSG/E-6) since 21 September 1974.  This block also shows that on 24 October 1985, the applicant was reduced from SFC/E-7 to the rank of Private/E-1 (PV1).  There are further entries which indicate that subsequent to his reduction he was again promoted through the rank of SP4, which he attained on 28 January 1987.

On 24 October 1985, the applicant was convicted by special court-martial of violations of Articles 92 and 134 of the Uniformed Code of Military Justice (UCMJ).  These violations were for wrongfully purchasing for illegal transfer or production of income through sale, various duty-free items of stereo and video equipment, at various United States Armed Forces installations throughout the Republic of Korea.  In addition, he was also convicted of wrongfully soliciting another soldier to disobey lawful general regulations by encouraging him to become involved in black-marketing activity at Camp Mobile, in the Republic of Korea.  The resulting sentence included his reduction to the rank of PV1.

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 30 October 1986 and that he requested a retirement date of 31 July 1987.  It also verifies that SFC/E-7 was the highest rank in which he served on active duty.  On 
18 June 1987, the appropriate authority approved his retirement request for 
31 July 1967 in the rank of SP4/E-4. 

On 31 July 1987, 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 SP4/E-4 and had completed a total of 20 years and 16 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 special 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 special 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	AR2000043646	
SUFFIX		
RECON		
DATE BOARDED	2000/07/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1987/07/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.