MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  13 March 2001
	DOCKET NUMBER:  AR2000049084

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Donald P. Hupman		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:  That he be retired in the pay grade of E-6 instead of E-5.

APPLICANT STATES:  That he received an Article 15, UCMJ, for being drunk on duty and was reduced to the pay grade of E-5/SGT.  He also states that he was informed that he would still be allowed to retire at the highest grade held as long as he held that grade for more than 2 years.  He further states that he has submitted his retirement packet through channels and will be placed on the retired rolls effective 1 April 2001.  He goes on to state that he has been sufficiently punished, paid a very severe price, and has suffered the loss of the difference in the pay grade of E-6 and E-5 during the past 28 months.  He also states that retiring at the pay grade of E-5 will cause a grave hardship on his family and that he deserves to be retired at the highest grade held.  In support of his application he submits a copy of his request for appeal of Article 15, dated 18 June 1998, copy of his board proceedings, a copy of his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), and a copy of his DA Form 2-1 (Personnel Qualification Record).

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on
24 March 1981 as a power generator equipment repairman.  He continues to serve and is presently assigned to Company C, 702nd Main Support Battalion in Korea.

He was promoted to the pay grade of E-6/SSG on 9 August 1988.

On 11 June 1998, he was punished under Article 15, UCMJ, for being drunk on duty.  His punishment consisted of a reduction to the pay grade of E-5, a forfeiture of pay, and 30 days restriction and extra duty.

The applicant provided a copy of his board proceedings which shows that his command recommended that he be retained on active duty.

In the processing of this case an advisory opinion was provided by the Total Army Personnel Command (PERSCOM), Chief, Retirements and Separations Branch.  The opinion stated that applicant’s case was reviewed as requested and finds that the applicant’s request is without merit.  The opinion also stated that, in accordance with Title 10, United States Code, section 3961, retirement of a soldier will be at his/her regular or reserve grade held on the date of retirement.  In order for the applicant to retire as an E-6 he must have regained that rank by promotion, otherwise he will be retired at the grade held on retirement.  

The applicant was provided a copy of this opinion for possible comment prior to 
consideration of his case.  He was also allotted 30 days to submit matters in rebuttal to this opinion; however, he has not responded in over 45 days. 

Section 3961 of Title 10, United States Code, states that unless entitled to a higher retired grade under some other provision of law, a member of the Regular or Reserve Army who retires other than for physical disability, retires in the Regular or Reserve grade that he/she holds on the date of his/her retirement.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board notes that the applicant held the grade of E-6/SSG for approximately 10 years and was reduced to the pay grade of E-5/SGT on 11 June 1998 for being drunk on duty.  The Board also notes that the applicant’s command recommended that he be retained on active duty in the pay grade of
E-5/SGT and that the applicant has submitted his request for retirement with an effective date of 1 April 2001.  

2.  The Board notes that there is no evidence in the available records, and the applicant has provided no evidence, to show that he was ever advanced or promoted after his reduction to the pay grade of E-5/SGT.  The Board also notes that in accordance with Section 3961 of Title 10, United States Code, that a member of the Regular Army who retires other than for physical disability retires in the Regular grade that he/she holds on the date of his/her retirement.  Therefore, the applicant is not entitled to retirement in the pay grade of E-6/SSG.

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

__jh___  ___jm___  ___dh_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049084	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010313	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	ACTIVE DUTY	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306		
2.		
3.		
4.		
5.		
6.