MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 August 2000
	DOCKET NUMBER:   AR2000045717

	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. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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, advancement on the Retired List to the pay grade of E-5.

APPLICANT STATES:  In effect, that he was unjustly reduced to the pay grade of E-4 with less than a year remaining from obtaining retirement eligibility simply because he refused to request a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

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

He was inducted on 4 November 1953 and served on active duty until he was honorably released from active duty (REFRAD) and was transferred to the United States Army Reserve (USAR).  On 19 January 1958, he enlisted in the National Guard and continued to serve in that capacity until he enlisted in the Regular Army on 25 April 1960.  He remained on active duty through a series of continuous reenlistments and extensions.  He was promoted to the pay grade of E-5 on 2 March 1960 and was reduced to the pay grade of E-4 on 19 September 1961.

The applicant’s reduction to the pay grade of E-4 was the result of a trial by special court-martial in which he was convicted of allowing a prisoner in his charge consume alcoholic beverages.

He was again promoted to the pay grade of E-5 on 28 October 1963 and was reduced to the pay grade of E-4 on 2 March 1965.  He was promoted back to the pay grade of E-5 on 12 August 1968 and was again reduced to the pay grade of E-4 on 16 September 1977.

The applicant’s last reduction was the result of nonjudicial punishment (NJP) being imposed against him for being absent from his place of duty and for drunken driving.  His punishment consisted of a reduction to the pay grade of E-5 (suspended for 90 days).  However, the suspended punishment was vacated by the imposing commander on 12 October 1977. 

On 8 December 1977 the applicant submitted an Application for Voluntary Retirement (DA Form 2339) in which he requested retirement for length of service to be effective 1 April 1978.

On 9 March 1978 he was convicted by a special court-martial of disrespect to a commissioned officer, disobeying a lawful order from a commissioned officer, communicating a threat to a commissioned officer, communicating a threat to a noncommissioned officer, and failure to go to his place of duty.  He was sentenced to a reduction to the pay grade of E-3.  The convening authority approved the findings but disapproved the sentence.

Accordingly, the applicant was REFRAD on 31 March 1978 and was transferred to the Retired List in the pay grade of E-4 effective 1 April 1978.  He had served 20 years and 1 day of total active service.

On 7 August 2000 the Army Grade Determination Review Board (AGDRB) reviewed the applicant’s records to determine if he should be advanced on the Retired List.  The AGDRB, after reviewing his records, determined that his service in the pay grade of E-5 was not satisfactorily served due to his having had NJP imposed against him on six occasions and being convicted by a special court-martial on one occasion while serving in the pay grade of E-5.  The AGDRB voted unanimously to deny his advancement on the Retired List. 

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.  In order to be advanced to a higher grade on the Retired list, the applicant must have at some time been properly advanced to and satisfactorily served in a higher grade prior to his being placed on the Retired list.  The Board concurs with the AGDRB determination that the applicant’s service in the pay grade of E-5 was not satisfactory service when his disciplinary record is compared to his overall record of service.  

3.  The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record. 

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

___cg___  ___alr___  ___clg __  DENY APPLICATION

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

INDEX

CASE ID	AR2000045717	
SUFFIX		
RECON		
DATE BOARDED	2000/08/24	
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.