PROCEEDINGS

	BOARD DATE:           26 August 1999                   
	DOCKET NUMBER:   AR1999026206

	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.  

	Mr. Loren G. Harrell		Director	
	Mr. Rick a. Schweigert 		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that all of his military records be corrected to show that he retired in pay grade E-6 rather than pay grade E-5.

3.  The applicant states, in effect, that the General Court-Martial Convening Authority (GCMCA) took action in his case after his retirement date and modified his sentence only by reducing him to pay grade to E-6.

4.  The applicant formerly was serving on active duty in pay grade E-7 when he was convicted by general court-martial of unlawfully entering an office building with intent to commit larceny and for stealing military property of a value over $100.00.  The sentence was adjudged on 7 December 1998.  The sentence consisted of reduction to pay grade E-5.  

5.  Thereafter, the applicant was released from active duty on 31 January 1999.  On 1 February 1999 his named was placed on the retired list in pay grade E-5.

6.  A pretrial agreement concerning the sentence shows the GCMCA agreed to disapprove any reduction below pay grade E-5, and confinement, and any punitive discharge.  

7. On 16 February 1999, the GCMCA took action on the sentence.  Despite the fact that the pretrial agreement provided for reduction to pay grade E-5, the GCMCA approved only so much of the sentence as provided for reduction to pay grade E-6.  

8.  Since the applicant was no longer on active duty, the action by the GCMCA to modify the sentence was not implemented.  Accordingly, the applicant appeals to this Board to implement the modified sentence.  

CONCLUSIONS:

1.  It appears appropriate and just to implement the applicant's sentence of his general court-martial conviction as modified by the GCMCA on 16 February 1999.

2.  Accordingly, his records should show that he was reduced to pay grade E-6 vice pay grade E-5, and that he was retired in the higher grade.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the individual concerned was reduced by general court-martial on 7 December 1998 to pay grade E-6 rather than pay grade E-5; 

	b.  by showing that he continued to serve on active duty in pay grade E-6 from the date of his conviction on 7 December 1998 to the date of his release from active duty on 31 January 1999; and 

	c.  by showing that his name was placed on the retired list in pay grade 
E-6 effective 1 February 1999.

BOARD VOTE:  

__SC____  __BJE__ __SLP___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__    Shirley L. Powell___
		        CHAIRPERSON

INDEX

CASE ID	AR1999026206	
SUFFIX		
RECON		
DATE BOARDED	19990826	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  105		
2.    133		
3.		
4.		
5.		
6.		

S:  5 NOV 99

SFMR-RBR - 1st End (26 AUG 99, Docket Number AR1999026206)
SUBJECT:  ABCMR Proceedings

HQDA, OASA, Arlington, Virginia  22202-4508                                  27 AUG 99

THRU:  Commander, Total Army Personnel Command, ATTN:  TAPC-MSE-A
             200 Stovall Street, Alexandria, Virginia  22332-0400

TO:  US Army Review Boards Agency Support Division - St. Louis
        ATTN:  SFMR-RBR-SL, 9700 Page Avenue, St. Louis, Missouri 63132-5200

1.  Under the authority of Title 10, United States Code, section 1552, the recommendation of the Army Board for Correction of Military Records is hereby approved, and it is directed that all of the Department of the Army records of the individual concerned be corrected as shown under Recommendation in the Proceedings of the Board in this case.

2.  Request necessary administrative action be taken to effect the correction of records as indicated no later than 5 November 1999.  Further, request that the individual concerned and counsel, if any, as well as any members of Congress who have shown interest be advised of the correction and that the Board for Correction of Military Records be furnished a copy of the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY:

Karl F. Schneider
Deputy Assistant Secretary
(Army Review Boards)

Encls 

CF:
Applicant
SFMR/pmp
DFAS 
Schweigert