IN THE CASE OF: BOARD DATE: 9 October 2020 DOCKET NUMBER: AR20200001389 APPLICANT REQUESTS: his retirement pay grade be corrected to reflect highest grade held of staff sergeant (SSG)/E-6. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 MC (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001053172 on 11 May 2001. 2. The applicant is requesting to be awarded his highest pay grade awarded on active duty, E-6. After many years and no troubles with his military service, he feels he earned his pay-grade and all benefits associated with it. 3. A review of the applicant’s records shows: a. 21 March 1974 – with prior service in the U.S. Marine Corps, he enlisted in the Regular Army. b. 15 July 1981, Orders 196-253, published by the U.S. Army Field Artillery Center and Fort Sill, promoted the applicant SSG. c. 22 September 1981 – the ABCMR corrected the applicant’s record to show he was promoted to the grade of SSG with an effective date of 1 June 1981. d. 15 December 1981, his commander initiated an Article 15 because the applicant received and willfully disobeyed an order, in violation of Article 90, UCMJ. The punishment imposed was forfeiture of $150.00. e. 16 May 1985, a DA Form 3072 (Request for Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for In-Service Personnel) was completed, and it shows he received an Article 15 on 15 November 1984 for violation of Article 111, UCMJ (recklessly or drunkenly operated or controlled a vehicle). The sentence imposed was reduction to SGT (suspended) and forfeiture$350 for two months. The Company Commander recommended approval. The Battalion Commander approved the waiver. f. 14 June 1985, he reenlisted in accordance with AR 601-280 (Table 4-1) for a period of 3 years in the rank of SSG. g. 15 March 1988, he received a letter of reprimand for driving with a blood alcohol content of .10% or higher h. 17 March 1988, a Charge sheet was prepared on the applicant for resisting being apprehended by an armed force policeman, a person authorized to apprehend the accused. i. 14 April 1988, a Record of Trial by Summary Court-Martial states the applicant pled guilty to Article 95 (resting apprehension). He was reduced to sergeant, forfeited $500 per month for one month, and was restricted to the company area for 30 days. j. Undated, the applicant submitted a request for a waiver for his court-martial so he could reenlist. He stated he learned from his mistakes and was ready to move on as a SSG. k. 11 December 1989, a DA Form 3072-R (Waiver of Disqualification for Reenlistment/Promotion in the Regular Army) was transmitted from the applicant’s Commander recommending he be allowed to stay in the Army. l. 31 January 1990, a 1st Endorsement was forwarded from the Battalion Commander, recommending approval of the Waiver of Disqualification for Reenlistment. Two more endorsements were submitted recommending approval. m. 13 February 1990 – he reviewed his Enlisted Record Brief that showed the following promotions/demotions: (1) Promotions – Sergeant (SGT)/ E-5 – 10 June 1977, SSG – 6 May 1981 (2) Demotion – SGT – 10 May 1988, Specialist (SPC)/E-4 – 23 August 1991. n. 5 April 1990, Waiver of Disqualification for Promotion for the applicant was not favorably considered. It was noted he required a waiver for enlistment in 1974 and to reenlist in 1985. He was given the opportunity to request an extension to complete 20 years of active service in accordance with AR 601-280 (Army Retention Program) para 2-30. o. 25 July 1991, he submitted an application for voluntary retirement. His total active component service between the U.S. Marine Corps and the Army was 20 years and 27 days. p. 17 September 1991, he was demoted to Specialist by reason of Article 15, UCMJ. His new date of rank was 23 August 1991. q. 17 March 1992, Orders 53-166 published by the 5th Personnel Service Company, Fort Polk, released him from active duty and placed him on the retired list. The effective date of retirement was 31 May 1992 in the rank of Specialist. r. 31 May 1992, DD Form 214 (Certificate of Release or Discharge from Active Duty) is reflective of an honorable discharge in the rank of Specialist (SPC)/E-4. s. 5 February 2001 – ABCMR Docket AR2001053172 was submitted and on 11 May 2001 the ABCMR denied the applicant’s request for advancement on the retired list. Title 10, USC section 3964, states, in pertinent part, that retired Soldiers are entitled, 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 in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned. The applicant retired on 31 May 1992 with 20 years and 27 days of total active service. The law provides for advancement on the retired list when his active service (20 years and 27 days) plus his service on the retired list totals 30 years. At the time of his request, he was a Specialist, and he had only been retired 9 years. To be eligible, he needed to be at the 30 year point (year 2002) to be considered for advancement on the retired list. t. 19 November 2002 – the Army Grade Determination Review Board convened. After a thorough review, the Board determined to deny advancement on the retired list to the grade of E-6 because he received an Article 15 for disobeying orders, another Article 15 for DUI, and a conviction by a Summary Court-Martial for DUI and resisting lawful apprehension, while in the grade of E-6. Subsequently, the Board determined the highest grade in which he served satisfactorily for the purpose of computation of retired pay was E-5. u. 13 December 2002 – the U.S. Army Reserve Personnel Command informed the applicant his request was reviewed by the Army Grade Determination Review Board. Based on their review, he was advanced on the retired list with an effective date of 4 June 2002, to the grade of SGT. v. 19 December 2002 – Review Boards Agency Support Division, St Louis informed the applicant his records were corrected based on the Board’s findings. 4. The applicant provided a copy of his DD Form 214 MC (Armed Forces of the United States Report of Transfer or Discharge) reflective of an Honorable Discharge from the Marine Corps on 2 March 1970 in the rank of Lance Corporal (LCP)/E-3. 5. Regulatory guidance is available under REFERENCE. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board found that the applicant's misconduct while serving as an SSG rendered his service in that grade unsatisfactory. The Board determined there is no error or injustice in the applicant's current retired grade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10 of the United States Code, section 3964, provides the legal authority for advancement 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 in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned. 3. Army Regulation (AR) 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist: a. revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or b. there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001389 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1