RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 August 2007 DOCKET NUMBER: AR20070004588 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. Michael J. Fowler Analyst The following members, a quorum, were present: Mr. Paul M. Smith Chairperson Mr. Rodney E. Barber Member Mr. Rowland C. Heflin Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, In effect, that he be advanced to the rank of Master Sergeant (MSG)/E-8 on the retired list. 2. The applicant states he served honorably for 25 years and as a MSG prior to his court-martial. He feels that he served his sentence, and his military records justify advancement to the rank of MSG. 3. The applicant provides no additional documentation in support of this case. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 1 April 1977. He was promoted to MSG on 1 October 1994. His enlisted evaluations during the period he was a MSG show exemplarily ratings and no adverse information in his military records prior to the events leading up to his court-martial. 2. On 1 February 2000, the applicant was promoted to the rank of Sergeant Major (SGM)/E-9. 3. On 8 October 2003, the applicant was convicted, pursuant to his pleas, by a general court-martial of on or between 18 July 2002 and 25 July 2002, wrongfully using a government computer and communication system to engage in pornographic internet chat; that on or between 1 July 2001 and 30 July 2002, knowingly possess images of child pornography transported in internet commerce by computer; and that on or about 30 July 2002, wrongfully and unlawfully make under lawful oath a false statement. He was sentenced to be reduced to pay grade E-7. 4. On 1 January 2004, the applicant was retired in the rank of SFC/E-7 after completing 26 years and 9 months of creditable active service. 5. On 20 November 2006, the Army Grade Determination Review Board (AGDRB) denied the applicant's request for advancement on the retired list because about a year after being promoted to the grade of E-9, he began wrongfully possessing and transporting in interstate commerce by computer images of child pornography. He was subsequently convicted by a general court-martial for that offense, as well as for wrongfully using a government computer and communications system to engage in pornographic chat and for making a false statement. The AGDRB determined that he did not serve satisfactorily in the grade of E-9. 6. Title 10, U.S. Code, section 3964 provides that warrant officers and enlisted members may, when their active duty service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty. 7. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), paragraph 2-5, provides that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was the result of the sentence of a court-martial. DISCUSSION AND CONCLUSIONS: 1. This Board concurs with the AGDRB that the applicant did not satisfactorily serve in pay grade E-9 as evidenced by his reduction by a general court-martial conviction that resulted in his reduction in pay grade from E-9 to E-7. His misconduct did not occur until one year after his promotion to E-9. 2. Army Regulation 15-80 states that service in the highest grade or intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was the result of the sentence of a court-martial; however, evidence of record clearly shows that the applicant did serve exemplarily for 5 years and 4 months in the intermediate pay grade of E-8. That exemplary service got him promoted to the grade of E-9 in the first place. Therefore, as a matter of equity, the applicant's grade on the retired list should be advanced to the pay grade MSG/E-8. 3. In view of the foregoing, the applicant’s records should be corrected as recommended below. BOARD VOTE: __PMS__ __REB __ __RCH__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was advanced on the retired list on 1 April 2007, when he attained 30 years of service, in the rank and grade of MSG/E-8 and that the Defense Finance and Accounting Service pay to the applicant all retired pay due as a result of this correction. _____ Paul M. Smith __ CHAIRPERSON INDEX CASE ID AR20070004588 SUFFIX RECON DATE BOARDED 28 AUGUST 2007 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY MR. SHATZER ISSUES 1. 129.0400.0000 2. 3. 4. 5. 6.