MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 May 2003      
	DOCKET NUMBER:   AR2003089662

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Frank C. Jones		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 as a Staff Sergeant (SSG), E-6 on the retired list.

APPLICANT STATES:  That it was his understanding that after he was reduced to pay grade E-5 his retired pay would be at the highest grade he held, which was E-6.

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

He enlisted in the Regular Army on 27 August 1973.  He was promoted to SSG on 1 May 1989.

On 13 January 1993, the applicant applied for retirement to be effective               1 September 1993.  Orders were issued on 10 February 1993 releasing him from active duty effective 31 August 1993 and placing him on the retired list the date following in the rank of SSG.

On 15 May 1993, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana between on or about 1 February 1993 and on or about 1 March 1993.  His punishment was a reduction to pay grade E-5 and a forfeiture of $250.00 pay for 2 months.

On an unknown date, the applicant's commander recommended him for separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The commander cited as his reason for the action the fact the applicant had tested positive for marijuana use on two separate occasions (on    1 March 1993 and on 29 March 1993).  The commander recommended the applicant's retention as he had an approved retirement.  The commander's recommendation was apparently approved.

Orders issued on 13 August 1993 amended the applicant's 10 February 1993 retirement orders to show his retired rank as Sergeant.

On 31 August 1993, the applicant was released from active duty in the rank and grade of Sergeant, E-5 for the purpose of length of service retirement.  He had completed 20 years and 4 days of creditable active service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In pertinent part, it provides that retired soldiers, when their active service plus service on the retired list total 30 years, are entitled to be advanced on the retired list to the highest grade in which they satisfactorily served on active duty.  When these soldiers complete 30 years of service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory.

Title 10, U. S. Code, section 3961(b) states that, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by section 3961(a) (which discusses commissioned officers) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.

Title 10, U. S. Code, section 3964 states that an enlisted member of the Regular Army 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 satisfactorily on active duty.

Title 10, U. S. Code, section 3992 states that an enlisted member who is advanced on the retired list under section 3964 of this title is entitled to recompute his retired pay in accordance with this section.

On 25 March 2003, the Army Grade Determination Board determined the highest grade in which the applicant served satisfactorily for the purpose of computation of retired pay is his current retired grade of Sergeant, E-5.

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.  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.

2.  By statute, an enlisted soldier who retires for length of service retires in the grade that he holds on the date of his retirement.  The applicant held the rank and grade of Sergeant, E-5 on the date of his retirement.

3.  By statute, an enlisted member of the Regular Army 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 satisfactorily on active duty.  The applicant will complete this period on 31 August 2003.

4.  The evidence of record shows the applicant was promoted to SSG on             1 May 1989.  Although he served in that rank for 4 years, in March 1993 he twice tested positive for marijuana use.  He received nonjudicial punishment for one of those offenses, resulting in his reduction to Sergeant, E-5.  It appears only the fact he already had an approved retirement prevented his being processed for a chapter 14 discharge for misconduct.

5.  The Board concludes the applicant does not meet the requirement to have satisfactorily served on active duty in the rank of SSG that would entitle him to advancement on the retired list.

6.  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

__lls___  __le____  __fcj        __  DENY APPLICATION

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

INDEX

CASE ID	AR2003089662	
SUFFIX		
RECON		
DATE BOARDED	20030529	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.