MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 December 2000
	DOCKET NUMBER:   AR2000044290

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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:  Advancement on the Retired List to the pay grade of E-4.

APPLICANT STATES:  In effect, that he was involved in a disabling automobile accident in which he was hospitalized for a period of 9 months.  After 8 months in the hospital he had recovered enough to go on pass and was 1 hour late in returning.  He goes on to state that he had never seen or served with the officer who reduced him and that the officer told him that he was going to make an example of him.  He further states that he was a good soldier and did not deserve to be reduced in rank.  He also states that before he could go to the Inspector General (IG) he was retired in the pay grade of E-3.

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

He enlisted on 27 August 1958 and after serving 2 years, 6 months, and 26 days of total active service, he was honorably discharged on 22 March 1961 for the purpose of immediate reenlistment.  He reenlisted the following day in the pay grade of E-3 for a period of 6 years.  He was promoted to the pay grade of E-4 on 1 September 1961.

On 22 September 1961 he was involved in a motor vehicle accident in El Paso, Texas in which he blacked out and struck another car.  He suffered injuries to his hip and pelvis and was hospitalized at William Beaumont General Hospital (WBGH).

The facts and circumstances surrounding his reduction in rank are not present in the available records.  However, his records show that he was reduced to the pay grade of E-3 on 12 April 1962 due to misconduct.  He was still assigned to WBGH at the time of his reduction. 

He underwent a Medical Evaluation Board (MEB) on 28 September 1962 and was referred to a Physical Evaluation Board (PEB).  A PEB convened on 5 October 1962 and directed that he be placed on the Temporary Disability Retired List (TDRL).

On 17 January 1963, an Ad Hoc Review Board at the Army Review Boards Agency reviewed the applicant’s records to determine if the applicant had served satisfactorily in the pay grade of E-4 for the purpose of determining his retired grade.  The board determined, after reviewing his records that his service in the pay grade of E-4 was not deemed satisfactory under the criteria established by a Memorandum for the Chief of Staff from the Under Secretary of the Army dated 16 July 1962.  The board determined that he should be retired in the pay grade of E-3.

Accordingly, he was honorably released from active duty on 29 January 1963 and was transferred to the TDRL in the pay grade of E-3,effective the same date, with a 40% disability rating.  He had served 4 years, 5 months and 3 days of total active service.

On 1 April 1967, after again being evaluated by a PEB, he was removed from the TDRL and was placed on the Permanent Disability Retired List (PDRL) in the pay grade of E-3, effective 1 April 1967.

The punishment relating to the applicant’s reduction is not in the available records.  However, his records do show that he was convicted by a summary court-martial on 1 December 1959 of being disrespectful to a superior noncommissioned officer.  He was sentenced to confinement at hard labor for 1 month, a reduction to the pay grade of E-1 and a forfeiture of pay.  

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 this requirement.

2.  Although the specifics of why the applicant was reduced in grade are not present in the available records, it is reasonable to presume that the misconduct for which he was charged was sufficient to warrant the action that was taken at the time. 

3.  This is further supported by the fact that after his reduction and prior to his placement on the TDRL, his records were reviewed when they were current, by the Army Ad Hoc Review Board and a determination was made at that time that his service in the pay grade of E-4 was not deemed satisfactory under the criteria in effect at the time.  Therefore, in the absence of evidence to the contrary, it must be presumed that the actions taken by the Army at the time were in accordance with applicable laws and regulations and that none of the applicant’s rights were violated.  Accordingly, there is no basis to advance him to a pay grade in which a determination has been previously made by the appropriate agency which deemed that service as unsatisfactory.
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

___fe ___  ___lem__  __hbo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044290	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/12	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV ON RET LIST	
2.		
3.		
4.		
5.		
6.