MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            12 March 2002                  
	DOCKET NUMBER:   AR2002068467

	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. Irene N. Wheelwright		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Gale J. Wire		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 sergeant first class/E-7 (SFC/E-7) on the Retired List.  

APPLICANT STATES:  In effect, that he served honorably in the rank and pay grade of SFC/E-7 for 4 years until being reduced to the rank and pay grade of staff sergeant/E-6 (SSG/E-6).  

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

He served on active duty a total of 20 years and 17 days until 31 May 1988, when he was honorably released from active duty (REFRAD), in the rank and pay grade of SSG/E-6, for the purpose of retirement.

The applicant’s 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 1 August 1980, which is the highest rank he held while on active duty.  It also verifies that on 23 August 1984, he was reduced to SSG/E-6 for misconduct.

The applicant’s disciplinary history while serving as a SFC/E-7 includes his acceptance nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  18 July 1983, for shoplifting; and 22 August 1984, for being absent without leave (AWOL) from 16 to 17 August 1984.  

In addition, on 25 June 1984, the applicant was found guilty of violating 
Article 92 of the UCMJ  by a special court-martial.  His conviction was based on his violating a lawful general regulation by winking at and touching the hair of a female private first class (PFC).  The resultant sentence was a reduction to SSG/E-6.  

The record contains a properly constituted separation document (DD Form 214), which was signed by the applicant on the date of his separation for the purpose of retirement.  This document shows that on 31 May 1988, he was REFRAD under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement.  It further confirms 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 11 February 2002, 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 concluded that his service as an SFC/E-7 was not satisfactory due to his disciplinary history while serving in that rank and pay grade.  Therefore, the AGDRB voted to deny his advancement to SFC/E-7 on the Retired List. 
Army 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.  After carefully evaluating the applicant’s entire record of service, the Board finds it concurs with the AGDRB determination that his service as a SFC/E-7 was not satisfactory and he should not be advanced on the Retired List.  

2.  The evidence of record confirms that the applicant was reduced to SSG/E-6 due to his own misconduct as a result of his conviction by a special court-martial and that his disciplinary history while serving as an SFC/E-7 also included his acceptance of NJP on two separation occasions.  Thus, the Board concludes that relief is not warranted in this case. 

3.  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

___INW__  __RJW__  __GJW___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068467	
SUFFIX		
RECON		
DATE BOARDED	2002/03/12	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1988/05/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	139.0900	
2.		
3.		
4.		
5.		
6.