MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 October 2001
	DOCKET NUMBER:   AR2001057713

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Karol A. Kennedy		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 on the Retired List to the rank and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, that he made a serious error in judgement.  He states that his quality of service before and after his error in judgement was outstanding and he has been sufficiently punished in the time that has passed and would now like to be promoted back to SFC/E-7.  In support of his application he submits a copy of his separation document (DD Form 214). 

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

On 31 October 1991, the applicant was honorably released from active duty (REFRAD) for the purpose of retirement after completing a total of 20 years and 20 days of active military service. 

The DD Form 214 issued to and signed by the applicant on the date of his separation confirms that he held the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on the date of his separation.  It also shows that during his active duty tenure he earned the following awards:  Good Conduct Medal (6th Award); National Defense Service Medal (1st OLC); and Army Commendation Medal.

The applicant’s record also reveals that on 8 July 1984 he was promoted to the rank and pay grade of SFC/E7 and that this was the highest rank he held while on active duty.  However, on 16 March 1988, he was convicted by a special court-martial (SPCM) of the wrongful use of marijuana on two occasions and was sentenced to be reduced to SSG/E-6 and to forfeit $967.00.

On 26 September 2001, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request to be advanced to the rank and pay grade of SFC/E-7 on the Retired List.  The AGDRB based their denial on the fact that he was convicted of marijuana use by a SPCM and that this diminished the quality of his service as a SFC/E-7 sufficiently to render his service in that rank and pay grade unsatisfactory. 

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 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 findings of the AGDRB that the applicant’s active duty service in the rank and pay grade of SFC/E-7 was not satisfactory due to his conviction of marijuana use by a SPCM.  As a result, the Board concludes that he should be retained on the Retired List in the rank and pay grade of SSG/E-6. 

2.  By violating the Army’s policy not to possess or use illegal drugs the applicant compromised the special trust and confidence placed in him as a noncommissioned officer (NCO).  As a senior NCO he had the duty to support and abide by the Army’s drug policy and by using illegal drugs he knowingly risked his military career.  The Board finds this misconduct clearly rendered his active duty service in the rank and pay grade of SFC/E-7 unsatisfactory.  

3.  Therefore, the Board finds that the highest rank and pay grade in which the applicant satisfactorily served on active duty was SSG/E-6 and it concludes he should be remain on the Retired List in that rank and pay grade. 

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

__MKP___  __KAK__  __RTD__  DENY APPLICATION

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

INDEX

CASE ID	AR2001057713	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/02	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.