MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 December 2000
	DOCKET NUMBER:   AR2000044117

	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. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Kenneth L. Wright		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 Staff Sergeant/E-6 (SSG/E-6) on the Retired List.

APPLICANT STATES:  In effect, that he was unjustly reduced in rank by an officer with no combat experience because he refused to lead a convoy of eight signal repair vans into what he thought was an ambush.  

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

On 31 December 1974, he was released from active duty (REFRAD), in the rank and pay grade of specialist five/E-5 (SP5/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 20 (enlisted qualification record) indicates in block 33 (appointments and reductions) that the applicant attained the rank of SSG/E-6 on 15 April 1969 and that was the highest rank he attained while serving on active duty.  However, it also shows that on 
4 March 1971 he was reduced to SP5/E-5 as a result of misconduct.

His disciplinary history reveals that he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on six separate occasions, four of which were imposed subsequent to his having been promoted to SSG/E-6, and a conviction by summary court-martial in October 1963.

On 11 December 1970, the applicant accepted the first NJP imposed on him after his promotion to SSG/E-6 for being drunk and disorderly.  On 9 January 1971 he accepted NJP punishment for leaving his place of duty without proper authority.  His punishment for this offense included a suspended reduction to SP5/E-5, which was vacated on 4 March 1971.

On 12 April 1971, he accepted NJP for assaulting a noncommissioned officer and finally on 12 December 1973 he again accepted NJP for operating a vehicle while drunk and for failing to go to his prescribed place of duty.   

The record contains a properly constituted DD Form 214 (Report of Separation 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 SP5/E-5 and had completed a total of 20 years and 1 month of active military service.

On 19 November 1984, 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 at the highest grade held because of his record of NJP while holding that grade.  The AGDRB concluded that the applicant should remain a SP5/E-5 on the Retired List.

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 SP5/E-5, and that he should not be advanced on the retired list to the highest grade he held. 

2.  The Board noted the applicant’s contention that he was reduced unjustly, however finds this claim lacks merit.  The evidence or record confirms that the applicant’s active duty service in the rank and pay grade of SSG/E-6 was not satisfactory, as evidenced by his record of NJP while serving in that rank and pay grade.  Therefore, the Board concludes relief 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 this 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

__jph ___  __klw ___  ___rjw __  DENY APPLICATION

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

INDEX

CASE ID	AR2000044117	
SUFFIX		
RECON		
DATE BOARDED	2000/12/19	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1974/12/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.