MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 May 2002
	DOCKET NUMBER:   AR2002071781

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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: 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:  The applicant has offered no argument or explanation with his application to support his request.

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

On 31 January 1992, the applicant was honorably released from active duty (REFRAD), in the rank and pay grade of staff sergeant/E-6 (SSG/E-6), for the purpose of retirement.  At the time of his separation, he had completed a total of 20 years, 4 months, and 10 days of active military service. 

The applicant’s record confirms that on 30 July 1983, he was promoted to the rank and pay grade of sergeant first class/E-7, which is the highest rank he attained while serving on active duty. 

On 14 April 1986, he was convicted by a summary court-martial of attempting to sell government property valued at $1,462.00.  He was sentenced to reduction to the rank of SSG/E-6 and a forfeiture of $700.00 pay.  

The separation document (DD Form 214) issued to and authenticated by the applicant with his signature on the date of his REFRAD, 31 January 1992, confirms that he held the rank of SSG/E-6 on the date of his separation and was accordingly placed on the Retired List the following day in that rank and pay grade.  This document also confirms that during his active duty tenure he earned the following awards:  Army Achievement Medal (1st OLC); Army Commendation Medal (3rd Award); Army Good Conduct Medal (6th Award); National Defense Service Medal with 1 bronze service star; Vietnam Service Medal with 4 bronze service stars; Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge; and Southwest Asia Service Medal with 2 bronze service stars.

Subsequent to his court-martial conviction, the applicant applied to this Board to have the summary court-martial removed from his records and to have his rank restored to SFC/E-7.  However, on 9 December 1987, after careful consideration of all the facts and circumstances, the Board denied his request

On 28 March 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement to the rank and pay grade of SFC/E-7 on the Retired List.  The AGRDB determined that the applicant did not serve satisfactorily in the pay grade of E-7 because his reduction from that rank was due to his own misconduct based on his summary court-martial conviction for attempting to sell government property.

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 AGRDB that the applicant did not satisfactorily serve in the rank and pay grade of SFC/E-7 because he was reduced from that rank and pay grade due to his own misconduct, as evidenced by his summary court-martial conviction for attempting to sell government property.  Therefore, the Board concludes the requested relief is not warranted in this case. 

2.  The applicant compromised the special trust and confidence placed in him as an NCO.  His misconduct was found to be inconsistent with the high standards of professionalism expected of an NCO and in the opinion of the Board rendered his served in the rank and pay grade of SFC/E-7 unsatisfactory.  Based on his overall record of service, the Board concludes that the applicant’s retired rank and pay grade of SSG/E-6 is the highest in which he satisfactorily served while on active duty; and it finds it would be would be appropriate that he retain that rank and pay grade on the Retired List. 

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

_RVO___  ___JPI__  __PM____  DENY APPLICATION

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

INDEX

CASE ID	A2002071781	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/30	
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.	129.0400	
2.		
3.		
4.		
5.		
6.