MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            30 May 2002                  
	DOCKET NUMBER:   AR2002071783

	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. 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:  In effect, that he be advanced on the Retired List to the highest rank and pay grade he held while serving on active duty.  

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

He served on active duty a total of 20 years and 29 days until 30 April 1991, when he was honorably released from active duty (REFRAD), in the rank and pay grade of specialist four/E-4 (SP4/E-4), for the purpose of retirement.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms, in Item 18 (Appointments and Reductions), that on 15 September 1976, he was promoted to the rank and pay grade of sergeant/E-5 (SGT/E-5).  On 19 August 1978, he was promoted to staff sergeant/E-6 (SSG/E-6), the highest rank he held while on active duty, and on 2 August 1988, he was reduced to SP4/E-4.  

The applicant’s disciplinary history while serving as a SSG/E-6 includes his conviction by a special court-martial of being absent without leave (AWOL) from 30 October to 30 November 1987; willfully disobeying the order of a noncommissioned officer (NCO); and the wrongful use of cocaine.  The resultant sentence included his reduction to SP4/E-4.  

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 30 April 1991, 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 SP4/E-4 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 27 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 SSG/E-6 on the Retired List.  They concluded that his service as a SSG/E-6 was not satisfactory due to his disciplinary history while serving in that rank and pay grade.  However, the AGDRB did determine that for the purpose of retired pay, the highest rank and pay grade in which the applicant satisfactorily served on active duty was SGT/E-5.  Therefore, the AGDRB voted to advance the applicant to that rank and pay grade 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 as determined by the Secretary of the Army in accordance with Title 10 of the Untied States Code, section 3964.  

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 and concurs with the determination of the AGDRB that the applicant’s service in the rank and pay grade of SSG/E-6 was not satisfactory and that the highest rank and pay in which he satisfactorily served while on active duty was SGT/E-5.  

2.  The evidence of record confirms that the applicant was reduced from the rank and pay grade of SSG/E-6 due to his own misconduct, as a result of his conviction by a special court-martial.  Therefore, the Board concludes that his advancement to that rank and pay grade on the Retired List is not warranted.  

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the retired grade determination process.  Therefore, it finds that the requested relief is not warranted in this case. 

4.  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.

5.  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	AR2002071783	
SUFFIX		
RECON		
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/04/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	139.0900	
2.		
3.		
4.		
5.		
6.