MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 October 2001
	DOCKET NUMBER:   AR2001060306

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 highest rank and pay grade in which he served satisfactorily on active duty. 

APPLICANT STATES:  In effect, that he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7) for almost 2 ½ years and subsequent to his reduction he was allowed to stay in the Army, be promoted back to staff sergeant/E-6 
(SSG/E-6), and retire for length of service after completing 20 years of active military service. 

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

He served on active duty a total of 20 years and 2 days and in 1991 was honorably released from active duty (REFRAD), in the rank and pay grade of SSG/E-6 for the purpose of retirement.  His Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in block 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 
28 December 1981 and that this was the highest rank he held while on active duty.  

The record also verifies that on 24 April 1984 the applicant was reduced to sergeant/E-5 (SGT/E-5) as a result of a conviction by a special court-martial of violating Article 92 of the Uniform Code of Military Justice (UCMJ) by having a sexual relationship with a trainee.  It also shows that subsequent to this reduction he was promoted back to SSG/E-6 on 9 December 1985.  

A properly constituted separation document (DD Form 214) that was signed by the applicant on the date of his retirement is on file in the record.  This document shows that on 30 April 1991 he was REFRAD for the purpose of retirement.  It also verifies that he held the rank and pay grade of SSG/E-6 on the date of his separation and that on the following day he was placed on the Retired List in that rank and pay grade.  

On 4 October 2001, the Army Grade Determination Review Board (AGDRB) evaluated the applicant’s record to determine if he should be advanced to the rank and pay grade of SFC/E-7 on the Retired List.  They determined that his service as a SFC/E-7 was not satisfactory due to his being reduced as a result of his own misconduct by a special court-martial that convicted him of having a sexual relationship with a female trainee.  The AGDRB finally voted that the applicant’s rank and pay grade on the Retired List should be SSG/E-6.  

Amy Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets the policy and procedure for the voluntary retirement of soldiers based on length of service.  It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement.

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade they held and satisfactorily served in while on active duty.

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 notes the applicant’s contention that he should be advanced to SFC/E-7 on the Retired List but after reviewing his overall record of service, the Board concludes it concurs with the AGDRB determination that his service as a SFC/E-7 was not satisfactory.

2.  The evidence of record confirms the applicant was reduced from the rank and pay grade of SFC/E-7 as a result of being convicted of a violation of the UCMJ by a special court-martial due to his own misconduct.  Thus, the Board concludes that his service as a SFC/E-7 was rendered unsatisfactory and that relief is not warranted in this case. 

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

__JHL___  __MDM__  __JAM__  DENY APPLICATION

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

INDEX

CASE ID	AR2001060306	
SUFFIX		
RECON		
DATE BOARDED	2001/10/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/04/30D	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.