MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 October 2000
	DOCKET NUMBER:   AR2000046370

	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 Sergeant First Class/E-7 (SFC/E-7) on the Retired List.  

APPLICANT STATES:  In effect, he was provided an inadequate and improper defense during the special court-martial proceedings that resulted in his reduction to Staff Sergeant/E-6.  He claims that his defense counsel handled his case improperly and he was never allowed to tell his side of the story.  A deal was agreed to by his counsel and the prosecutor that called for him to entered a guilty plea to all three counts against him, which would result in his SFC/E-7 rank being reinstated within six months.  However, subsequent to the court-martial conviction promotion authority was assumed by Department of the Army and his rank was never reinstated.  He indicates that his record of service both prior to and subsequent to his reduction supports his being advanced on the Retired List. He concludes by stating that he was not guilty of the charges as outlined and that he was not drunk at the time of the accident and his expanded argument is provided in the enclosed statement he provided with application.  

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

On 31 July 1978, 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 22 days of active military service and he held the rank and pay grade of Staff Sergeant/E-6 (SSG/E-6).

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates in block 33 (Appointments and Reductions) that he was first promoted to the pay grade of E-7 on 31 August 1967 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 SSG/E-6 on 22 January 1969.

On 17 January 1969, while he was serving as an SFC/E-7 in Vietnam, the applicant plead guilty to and was convicted of the following offenses by special court-martial:  wrongfully and unlawfully leaving the scene of an accident; driving a motor vehicle in a negligent manner which resulted in the death of another individual; and for driving a motor vehicle while drunk.  The resultant sentence included his reduction to the rank of Corporal/E-4 and a forfeiture of $154.00 per month for six months.  

On 22 January 1967, the appropriate authority approved only so much of the sentence that provided for the applicant’s reduction to SSG/E-6.  The record contains no information that the applicant appealed or contested either the court-martial proceedings or the sentence at the time of its imposition.

The record shows that subsequent to his reduction in rank, the applicant completed the Vietnam tour he was serving on at the time of his court-martial conviction and an additional combat tour in Vietnam.  It also shows that he earned the Purple Heart for wounds he received and the Silver Star for his acts of heroism during an engagement in military operations involving conflict with an armed hostile force in Vietnam on 2 September 1970. 

The applicant continued to serve on active duty and compete for promotion until his separation in 1978.  In spite of his documented heroic actions outlined in the preceding paragraph, there is no evidence that he was ever selected for promotion back to the rank of SFC/E-7 by proper authority based on his overall record of service. 

The record contains a properly constituted DD Form 214 (Report of Separation From Active Duty), which was signed by the applicant on the date of his retirement.  This document shows that on 31 July 1978 he was REFRAD under the provisions of Title 10 of the United States Code, section 3914 by reason of length of service retirement, in the rank of SSG/E-6 and that he was placed on the Retired List the following day in that rank and pay grade.  

On 30 August 2000, the Army Grade Determination Review Board (AGDRB) determined, based on the applicant’s misconduct and court-martial conviction as an SFC/E-7, that his service in that rank and pay grade was not satisfactory, and they voted to deny his advancement on the Retired List to that grade. 

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 30 August 2000 determination of the AGDRB that the applicant’s active duty service as an SFC/E-7 was not satisfactory and that he should not be advanced to that rank and pay grade on the Retired List.  
2.  The applicant was reduced to SSG/E-6 as a result of his own misconduct as a result of being convicted of serious offenses by a special court-martial.  The court-martial proceedings were conducted in accordance with applicable law and regulation and the resultant sentence was an appropriate punishment.  Thus, the Board finds that the applicant’s advancement to SFC/E-7 on the Retired List is neither appropriate nor warranted.

3.  The Board noted the fact that the applicant earned the Purple Heart and the Silver Star for wounds received and heroic actions in Vietnam on 2 September 1970.  However, he earned these awards as a SSG/E-6, subsequent to his reduction for misconduct.  Further, these events were on file and received appropriate consideration by promotion selection boards throughout the remainder of the applicant’s active duty service.  Therefore, the Board finds this factor does not provide a basis for a satisfactory service determination of the applicant’s SFC/E-7 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

___js____  ___rjw __  ___rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046370	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/03	
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.