MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            14 February 2002                 
	DOCKET NUMBER:    AR2002068049

	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:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 to the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on the Retired List. 

APPLICANT STATES:  In effect, that his active service plus service on the Retired List equaled 30 years on 31 August 2000, and he believes he should be advanced to SSG/E-6 on the Retired List based on his 7 years of active duty service in that grade.  

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

On 31 August 1990, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of specialist/E-4 (SPC/E-4) and had completed a total of 20 years, 1 month, and 7 days of active military service. 

The applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be retired on 31 August 1990, in the rank and pay grade of SPC/E-4.  A Data for Retired Pay (DA Form 3713), dated 29 August 1990,  prepared on him during his retirement processing contains the entry SPC/E-4 in item 2 (Active Duty Grade) and item 3 (Retired Grade).  Item 17 (date placed on Retired List) verifies that he would be placed on the Retired List, effective 
1 September 1990, and item 10 (Retired Pay) confirms that he would receive retired pay as a SPC/E-4. 

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in item 18 (Appointments and Reductions) that he was promoted to SSG/E-6, the highest rank and pay grade he held on active duty, on 4 August 1982, and that he was reduced from that rank and pay grade to SPC/E-4 on 10 July 1990, due to his own misconduct as a result of a court-martial conviction.

On 10 July 1990, the applicant was found guilty by a special court-martial of unlawfully entering a room with the intent to commit larceny and larceny of government property.  The resultant sentence was his reduction to the rank and pay grade of SP4/E-4.  

The separation document issued to him on the date of his separation, 
31 August 1990, which he authenticated with his signature, confirms that he held the rank and pay grade of SPC/E-4 on the date of REFRAD.  On 17 August 1990, Orders Number 159-3, published by Headquarters, United States Army Fort Belvoir, Fort Belvoir, Virginia, directed the applicant’s REFRAD on 
31 August 1990, and his placement on the Retired List the following day, 
1 September 1990, in the rank and pay grade of SPC/E-4.

On 29 January 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List.  The AGDRB determined the applicant should not be advanced to the rank and pay grade of SSG/E-6 on the Retired List because he did not serve satisfactorily in that rank and pay grade due to his conviction by a special court-martial that resulted in a sentence that reduced him from SSG/E-6 to SPC/E-4.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and it states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.  

Title 10 of the United States Code, section 3964, provides the legal authority for advancement on the Retired List and 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 in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.  

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 the rank and pay grade of SSG/E-6 on the Retired List based on his 7 years of active duty service in that rank and pay grade.  However, the Board finds an insufficient evidentiary basis to grant the requested relief. 

2.  The evidence of record confirms that the applicant was reduced from 
SSG/E-6 to SPC/E-4 due to his own misconduct based on his conviction by a special court-martial and the resultant sentence.  Therefore, the Board concurs with the determination of the AGDRB that the applicant’s service as a SSG/E-6 was unsatisfactory and it concludes that his advancement to that rank and pay grade on the Retired List is not warranted.  

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

__JNS___  __BJE__  __JED___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068049	
SUFFIX		
RECON		
DATE BOARDED	2002/02/14	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/08/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.