MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 January 2001
	DOCKET NUMBER:   AR2000045727

	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. Luther L. Santiful		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 demoted for failure to follow an order from a junior officer that he felt to be in error, which was to clean and polish vehicles instead of repairing them in order to prepare for an inspection.  He claims to have done this when he was in charge of fleet maintenance.  

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

On 31 May 1971, he was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 3914, by reason of length of service retirement.  At the time of his separation, he had completed a total of 21 years, 8 months, and 6 days of active military service and he held the rank and pay grade of sergeant/E-5 (SGT/E-5).

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates in block 33 (Appointments and Reductions) that he was  promoted to SSG/E-6 on 10 August 1966 and that this is the highest rank he held while on active duty.  It also shows that he was reduced to the rank and pay grade of SGT/E-5 on 26 May 1969 for misconduct.  

The applicant was promoted to SSG E-6 shortly before completing his only combat tour in Vietnam on 27 August 1966.  There is no evidence that he was recognized for any specific act of valor or significant achievement during his tour in Vietnam.  In addition, the record shows that during his tenure on active duty he only earned the following awards:  the National Defense Service Medal with first oak leaf cluster, Vietnam Service Medal, Vietnam Campaign Medal, and Good Conduct Medal with first oak leaf cluster.  

The applicant’s Military Personnel Records Jacket (MPRJ) contains evidence of an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on nine separate occasions.  In addition, it shows that he was tried and convicted by summary court-martial on four separate occasions and by special court-martial on three separate occasions.  Further, the record reveals that he accrued a total of 132 days of time lost due to being absent without leave (AWOL) between April 1969 and April 1971.  

The record confirms that the applicant accepted three of his nine NJPs while serving as a SSG/E-6.  The last of these resulted in his reduction to SGT/E-5 and while the actual record of Article 15 proceedings pertaining to this NJP is not on file; his reduction is codified in a special order, dated 26 May 1969, and was likely the result of his being AWOL from 13 to 18 May 1969.  
Subsequent to his reduction to SGT/E-5 and prior to his retirement the applicant accepted two additional NJPs and accrued an additional 120 days of time lost due to AWOL.  

The record contains a properly constituted Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which was signed by the applicant on the date of his retirement.  This document shows that he was REFRAD on 31 May 1971, in the rank of SGT/E-5, and that he was placed on the Retired List the following day in that rank and pay grade.  

On 7 August 2000, the Army Grade Determination Review Board (AGDRB) determined, based on the applicant’s two incidents of AWOL while serving as a SSG/E-6, that his service in that rank and pay grade was not satisfactory and they voted to deny his advancement to SSG/E-6 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). 

Title 10 of the United States Code, section 3964 provides the legal authority for advancement on the Retired List.  It states, in pertinent part, that retired soldiers, when their active service plus their service on the Retired List totals 30 years, are entitled to be advanced on the Retired List, to the highest grade they held and satisfactorily served on active duty as determined by the Secretary of the Army.

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 7 August 2000 determination of the AGDRB that the applicant’s active duty service as an SSG/E-6 was not satisfactory and that he should not be advanced to that rank and pay grade on the Retired List.  

2.  The Board noted the applicant’s contention that his reduction was unjust.  However, the evidence of record shows an extensive disciplinary history and that he was reduced to SGT/E-5 as a result of his own misconduct after accepting NJP.  There is no evidence to suggest that the NJP action was not conducted in accordance with applicable law and regulation or that the resultant reduction was an inappropriate punishment.  Thus, the Board finds that the applicant’s advancement to SSG/E-6 on the Retired List is neither appropriate nor warranted.

3.  The Board noted the fact that the applicant completed a combat tour in Vietnam.  However, this combat service does not sufficiently mitigate the applicant’s record of misconduct as a SSG/E-6.  Therefore, the Board finds this factor does not provide a basis for a satisfactory service determination of the applicant’s SSG/E-6 service.

4.  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.

5.  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

___wtm__  ___ls ___  ___teo __  DENY APPLICATION

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

INDEX

CASE ID	AR2000045727	
SUFFIX		
RECON		
DATE BOARDED	2001/01/23	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/05/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.