PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 February 2001
	DOCKET NUMBER:   AR2001053168

	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. Guoin		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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 sergeant first class (SFC), pay grade E-7, the highest grade he held on active duty.

3.  The applicant’s military records show he enlisted in the United States Army Reserve (Delayed Entry Program) on 1 July 1969.  He began his active military service on 6 August 1969.  His military occupational specialty was 17L (Aeriel Sensor Specialist).  He remained on active duty until his length of service retirement on 31 August 1989.  He honorably retired in the rank of sergeant, pay grade E-5, having completed 20 years and 25 days active service.

4.  His awards include the Air Medal with numeral 12, the Army Commendation Medal, the Army Good Conduct Medal and the National Defense Service Medal. 

5.  He was promoted to the rank of staff sergeant, pay grade E-6, with a date of rank of 11 March 1979.

6.  The applicant was arrested for driving while under the influence of alcohol on three different occasions.  He was first arrested for drunken driving on 
30 July 1983 by civilian authorities in Benson, Arizona.  He was serving on active duty at Fort Hauchuca, Arizona at that time.

7.  On 2 May 1985, he was promoted to sergeant first class, pay grade E-7.

8.  On 6 September 1985, while serving in the Federal Republic of Germany, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for driving while under the influence (DUI) of alcohol.  The punishment imposed was forfeiture of $500.00 per month for two months.

9.  On 20 March 1987, the applicant was again arrested for driving under the influence of intoxicating liquor in Fort Hauchuca, Arizona.

10.  He was charged with violation of Article 92, UCMJ, for failure to obey a general regulation by not providing the minimum support required for his family from 11 March 1986 to 9 March 1988 (one specification), violation of Article 107, UCMJ, for making false official statements (5 specifications), violation of Article 121, UCMJ, for larceny of $12, 697.13 from 11 March 1985 to 
31 December 1987 (one specification), violation of Article 132, UCMJ, for frauds against the United States, (one specification).  He plead not guilty to all charges and specifications, except for the charge of fraud against the United States, to which he entered no plea.

11.  On 23 November 1988, the applicant was convicted by general court-martial of violating a lawful general order and larceny in the amount of more than $100.00 and less that $12, 697.13.  He was found not guilty of making false official statements and the charge of fraud against the United States was dismissed on government motion.  He was sentenced to reprimand, reduced to E-5, and forfeiture of $250.00 per month for 12 months.  The sentence was adjudged on 29 August 1988.

12.  The Army Grade Determination Review Board (AGDRB) determined that the applicant did not serve satisfactorily on active duty in the grade of sergeant first class.  However, the AGDRB determined the highest grade in which he served satisfactorily for the purpose of computation of retired pay was E-6. 

13.  Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

CONCLUSIONS:

1.  The applicant’s only offense as an E-6 was his first arrest for DUI.  He overcame this and held the grade for 4 years, 4 months and 19 days, until he was promoted to sergeant first class, pay grade E-7 on 2 May 1985.

2.  The applicant received NJP for his second arrest due to DUI; he was arrested a third time for DUI; and he was convicted by a general court-martial for non-support of his family and larceny, and therefore, his service in pay grade E-7 is considered to be unsatisfactory.

3.  The Board notes that the AGDRB considered that the applicant’s active service in the rank of sergeant first class was unsatisfactory.  The Board also notes that the AGDRB determined the highest grade in which the applicant served satisfactorily for the purpose of computation of retired pay was E-6. 

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

RECOMMENDATION:

1.  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.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__RVO__  __WTM__  ___TL___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2001053168	
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	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.