MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 February 2002                  
	DOCKET NUMBER:    AR2002068052

	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. George D. Paxson		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Melvin H. Meyer		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 reinstated to the rank and pay grade of staff sergeant/E-6 (SSG/E-6).

APPLICANT STATES:  In effect, that the sexual harassment of his female unit commander in Korea was a mitigating factor for his misconduct that resulted in his reduction from SSG/E-6 to specialist/E-4 (SPC/E-4).  He claims his problems began when he refused the request of his female unit commander that he extend his time in Korea in order to be her lover.  He indicates that from that time on, he was subjected to sexual harassment and could do no right.  He claims that as a result, he started to drink heavily in order to reduce the pressure, but this only added to his problems.  He also comments that even though he admitted to his wrong doing and that he should be punished for his actions, he now believes that had it not been for the sexual harassment of his unit commander, none of these problems would have taken place.  In addition, he claims that he was convicted by a court-martial in March 1987, and after he returned home from Korea he went through so much that he contemplated suicide many times.  In support of his application, he provides the enclosed documents that include his statement outlining his entire argument, a letter he submitted to his congressman containing his sexual harassment claims, and a third party statement from a friend that indicates the applicant was reprised against by the unit commander when he failed to get involved with her. 

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

On 30 September 1991, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of SPC/E-4 and had completed a total of 20 years and 28 days of active military service. 

On 1 October 1990, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting that he be retired on 30 September 1991, in the rank and pay grade of SPC/E-4.  A Data for Retired Pay (DA Form 3713) 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 8 (Highest Grade Held) shows that the highest grade he held while on active duty was SSG/E-6.  Item 17 (date placed on Retired List) verifies that he would be placed on the Retired List, effective 1 October 1991, and item 10 (Retired Pay) confirms that he would receive retired pay as a SPC/E-4. 

The separation document issued to him on the date of his separation, 
30 September 1991, confirms that on that date he held the rank and pay grade of SPC/E-4 and that during his tenure on active duty he had accrued 13 days of time lost due to being absent without leave (AWOL).  

On 2 October 1990, Orders Number 275-216, published by Headquarters, United States Army Logistics Center and Fort Lee, Fort Lee, Virginia, directed the applicant’s REFRAD on 30 September 1991 and his placement on the Retired List the following day, in the rank and pay grade of SPC/E-4.  

The applicant’s Personnel Qualification Record (DA Form 2-1), which he last reviewed on 11 August 1990, confirms in item 18 (Appointments and Reductions) that he was promoted to SSG/E-6, the highest rank he held on active duty, on 
12 January 1980, and that he was reduced from that grade to SPC/E-4 on 
21 May 1987, due to his own misconduct, as a result of a court-martial conviction.  

The applicant’s disciplinary history while serving as a SSG/E-6 includes his acceptance of nonjudicial punishment (NJP) on the following two separate occasions, for the offenses indicated:  25 September 1980, for disobeying the lawful order of a superior noncommissioned officer (NCO); and 3 February 1981, for being AWOL.  In addition, he was reduced from SSG/E-6 to SPC/E-4 on 
21 May 1987, due to his own misconduct, as a result of his conviction by a 
court-martial and the resultant sentence.  

On 30 September 1991, the applicant was REFRAD under the provisions of chapter 12, Army Regulation 635-200, for the purpose of voluntary retirement.  The separation document (DD Form 214) issued to him on the date of his separation confirms that he held the rank and pay grade of SPC/E-4 on the date of his REFRAD, and that he was placed on the Retired List the following day in that rank and pay grade.

On 29 January 2002, the Army Grade Determination Review Board (AGDRB) determined that the highest rank and pay grade in which the applicant satisfactorily served was sergeant/E-5 (SGT/E-5) and that he should be advanced to that rank and pay grade on the Retired List.  However, the AGDRB determined, based on his disciplinary history while serving as a SSG/E-6, which  included his acceptance of two NJPs and his conviction by a court-martial that resulted in a sentence that reduced him to SPC/E-4, that his service in that rank and pay grade was unsatisfactory.  Therefore, the AGDRB denied the his advancement to SSG/E-6 on the Retired List. 

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.  

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to grant relief only if clemency is determined to be appropriate.  Army Regulation 15-185 prescribes the policy and procedure of correction of military records by the Secretary of the Army through the ABCMR and paragraph 2-9 stipulates that the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving error or injustice by the preponderance of the evidence.  

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 the sexual harassment of his former unit commander was a mitigating factor for his misconduct that resulted in his court-martial conviction and the resultant reduction sentence.  However, the Board conducted an extensive review of the applicant’s record and it finds insufficient evidence to support this claim.  

2.  While the specific facts and circumstances surrounding the applicant’s trial and conviction by court-martial are not on file, lacking independent evidence to the contrary, the Board presumes government regularity in the applicant’s 
court-martial trial, conviction, and sentencing.  Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the court-martial process.  

3.  Further, while the Board considered the applicant’s complaint of sexual harassment seriously, and would never let stand an action that resulted from this circumstance, it does not find sufficient convincing evidence that this was the basis for the applicant’s court-martial prosecution, conviction, and sentence in this case.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to grant relief if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  Lacking evidence that the applicant’s reduction was the result of a sexual harassment reprisal, coupled with his extensive disciplinary history and undistinguished overall record of service, the Board concludes that clemency is not warranted in this case. 

5.  Although the applicant’s specific request of this Board was to be reinstated to the rank of SSG/E-6, and not for advancement on the Retired List, the Board determined that since he is currently on the Retired List and requested a grade reinstatement, this carried with it an implied request for advancement, which necessitated consideration. 

6.  However, after a careful review of the applicant’s record and the evidence he submitted, the Board concurs with the determination of the AGDRB that his service as a SSG/E-6 was unsatisfactory.  Therefore, the Board concludes that his advancement on the Retired List is also not warranted.  

7.  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.

8.  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.

NOTE:  The ARBA Support Team’s attention is invited to the AGDRB action included with this case that advanced the applicant to the rank and pay grade of SGT/E-5 on the Retired List and the Board recommends all administrative action necessary to accomplish this advancement be completed.  

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__GDP__  __TAP__  __MHM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002068052	
SUFFIX		
RECON		
DATE BOARDED	2002/02/21	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.