PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 February 2001
	DOCKET NUMBER:   AR2000046941

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Lisa O. Guion		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be advanced on the retired list to the rank of staff sergeant (SSG), pay grade E-6, the highest grade he held on active duty.

3.  The applicant states that based upon information published in the Army Echoes, Issue 3,1999, he would like to know if he qualifies for advancement on the retired list to pay grade E-6.

4.  The applicant’s military records show that he was inducted into the Army on
19 May 1953.  His military occupational specialty was 56A (Supply Handler) until he later reclassified to 12B (Combat Engineer). He served on active duty until his length of service retirement on 31 May 1973, having completed a total of
20 years and 10 days active service.

5.  The applicant served for 22 months in the Republic of South Korea from a few months after the 1953 Armistice Signing until September 1955.  He also served three tours of duty in the Federal Republic of Germany during the 1960’s 
(74 months total).  He was assigned to the Republic of Vietnam (RVN) from 
9 December 1965 to 8 December 1966 during which time he served as a Combat Engineer (12B).  He received the Bronze Star Medal (BSM) for heroism on 
8 August 1966.  That award was based on his providing covering fire from an exposed position to protect the other members of his squad and did not cease until he became wounded.  The applicant volunteered for a second tour of duty in RVN from 31 July 1970 to 30 July 1971, serving as an Assistant Squad Leader and a Reconnaissance Sergeant.  He was awarded the Army Commendation Medal for his meritorious service during this tour in RVN.

6.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency were consistently rated as excellent from May 1953 through the last entry of July 1971.

7.  On 5 December 1966, while serving in Vietnam, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit of assignment without proper authority from 2 December 1966 through 4 December 1966.  The punishment imposed was a forfeiture of $76.00.

8.  The applicant was promoted to staff sergeant (SSG) pay grade E-6 on 
22 June 1968.  He served in that grade for 2 years and 2 months. 

9.  On 12 January 1970, the applicant again received NJP under the provisions of Article 15, UCMJ, for failing to perform his duties as Sergeant of the Guard in a military manner.  The punishment included reduction to pay grade E-5 and to forfeit $50.00 a month for two months. The commander suspended the reduction 
in grade for a period of 6 months.

10.  On 15 April 1970 the applicant was reduced to sergeant, E-5 as a result of unknown misconduct.

11.  The applicant’s enlisted efficiency report for the rating period beginning September 1971 and ending February 1972 indicates that he should be promoted immediately.  However, he retired prior to being promoted.

12.  The Army Grade Determination Review Board determined that the applicant did not serve satisfactorily on active duty in the grade of staff sergeant and that there were no unusual or extenuating circumstances in his record sufficient to overcome this finding.

13.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  Chapter 3 of that regulation provides, in pertinent part, that the use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures.

14.  Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

CONCLUSIONS:

1.  The applicant received NJP, while assigned in RVN for a 2 day period of AWOL that occurred just 1 week prior to his rotation to the United States.  He overcame this and was promoted to staff sergeant on 22 January 1968.  He held this rank for more than 2 years.

2.  This applicant’s only other disciplinary action occurred 12 January 1970 for failing to perform his duties as sergeant of the guard in a military manner.  Even though the suspended reduction was later vacated due to unknown misconduct, the applicant’s records show he was continually rated “excellent” in conduct and efficiency and was recommended on his subsequent performance evaluations for promotion ahead of his contemporaries.  

3.  The applicant twice served in combat, was wounded and recognized for his heroic action by being awarded the BSM for valor.

4.  The Board notes that the Army Grade Determination Review Board considered the applicant’s active service in the rank of staff sergeant was unsatisfactory.  However, the Board is convinced that the overall quality of the applicant’s service is sufficiently mitigating and, therefore, he should be advanced on the retired list to staff sergeant, E-6.  This seems especially true in light of his award for heroism.

5.  The Board finds it to be in the interest of justice to excuse the applicant’s failure to timely file his application within the Board’s 3 year statute of limitations.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected;

a.  by showing that the highest grade satisfactorily held by the individual concerned for the purpose of computation of retired pay and determining the grade to which he should be advanced on the retired list under the provisions of 10 U.S.C. 3964 was staff sergeant, E-6; and

b.  by showing that he was advanced on the retired list to the grade of staff sergeant (E-6) on the earliest date of eligibility, as determined by the Army Reserve Personnel Command, St. Louis, Missouri.

BOARD VOTE:  

_JHL___  __GDP___  __DPH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__JoAnn H. Langston__
		        CHAIRPERSON

INDEX

CASE ID	AR2000046941	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.