MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 October 2000
	DOCKET NUMBER:   AR2000045963

	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. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 to the rank of Specialist Five/E-5 (SP5/E-5) for failure to repair after having performed three years of good service as a SSG/E-6.  He indicates that he became ill with an upset stomach at a training site where there were no restroom facilities.  He returned to the barracks, which were about 200 yards from the training site, to use the facilities.  On his way back to the training site he met another soldier who informed him that training had been completed so he returned to the company area.  The next day he was informed by his First Sergeant that he had missed one hour of training and as a result the Colonel had decided to reduce him to SGT/E-5 for failure to repair.  He concludes his comments by stating that between March 1983, when he was demoted, and March 1984, when he separated, he distinguished himself by obtaining the highest tank gunnery score for his unit and by never missing a training requirement in a unit responsible for training young officers and enlisted personnel.  

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

On 31 March 1984, 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 20 years and 3 days of active military service and he held the rank and pay grade of SP5/E-5.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that he was promoted to SSG/E-6, which was the highest rank he held while on active duty, on 11 April 1977.  It also confirms that he was reduced to the rank and pay grade of SP5/E-5 on 15 July 1981, to Specialist Four/E-4 on 29 April 1982, and that he was promoted back to SP5/E-5 on 3 September 1983, which is the rank and pay grade he held at the time of his REFRAD.

The applicant’s record documents no acts of valor, significant achievement , or service warranting special recognition, between 11 April 1977 and 15 July 1981, the period in which he served as a SSG/E-6.  However, there is an extensive disciplinary history recorded during this same period.  He accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following four separate occasions:  15 December 1977 for ration control violations; 7 August 1979 for dereliction of duty; 1 July 1980 for disobeying an officer twice and dereliction of duty; and 15 July 1981 for failure to repair, which resulted in his reduction to SP5/E-5. 

During his service subsequent to his reduction, between 15 July 1981 and 
31 March 1984, the applicant’s record shows that he accepted another NJP on  29 April 1982 for failure to repair, which resulted in his reduction to SP4/E-4, and that he was promoted back to the rank and pay grade of SP5/E-5 on 
3 September 1983.

The record contains a properly constituted Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty), which was signed by the applicant on the date of his REFRAD.  This document shows that he was separated, under the provisions of Title 10, United States Code, section 3914, by reason of voluntary length of service retirement after completing a total of 
20 years and 3 days of active military service.  The DD Form 214 also confirms that on 31 March 1984, the date of his REFRAD, he held the rank of SP5/E-5 and that on the following day he was placed on the Retired List in that rank and pay grade. 

On 14 August 2000, the Army Grade Determination Review Board (AGDRB) determined, based on the applicant’s record of misconduct as a SSG/E-6, that his service in that rank and pay grade was not satisfactory, and voted to deny his advancement on the Retired List.

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel.  Section XII provided guidance on the reduction of enlisted personnel and paragraph 7-64 stated, in pertinent part, that misconduct as documented by Article 15 of the UCMJ was a valid reason for taking reduction action on enlisted members in the pay grades of E-6 and below.  

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.

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 determination of the AGDRB that the applicant’s service as a SSG/E-6 was not satisfactory and that his advancement on the Retired List is not warranted.  

2.  After carefully evaluating the applicant’s entire record of service, the Board concludes that he was reduced to SP5/E-5 as a result of his own misconduct and that this reduction action were properly accomplished in accordance with the applicable regulations in effect at the time.  Therefore, the Board finds that it would not be appropriate to advance the applicant on the Retired List at this time. 

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

___js  ___  ___rjw___  __rtd____  DENY APPLICATION

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

INDEX
CASE ID	AR2000045963	
SUFFIX		
RECON		
DATE BOARDED	2000/10/03	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1984/03/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900