MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 February 2001
	DOCKET NUMBER:   AR2000047782

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Barbara J. Lutz		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: That he be advanced on the retired list to the pay grade of E-6.

APPLICANT STATES:  That he was guilty of the charges of child abuse that culminated in his general court-martial conviction.  He states that his sentence was based upon statements made by the prosecutor and his therapist.  He states that the prosecutor stated that his rank of staff sergeant could be reinstated after 10 years.  Also, his therapist testified that he was suffering from post traumatic stress disorder.  He states that he understands the wrong that he committed and through therapy he is now a better father, husband, and community leader.  In support of his application he submits a letter from his psychologist dated 14 April 2000.

COUNSEL CONTENDS:  That the applicant should receive retirement benefits based upon the highest grade he served in a satisfactory manner, which would be pay grade E-6.  He contends that the applicant’s military career was free of any disciplinary infractions prior to his court-martial, including the period of time that he served in the rank of staff sergeant.

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

The applicant entered the Army on 14 February 1968.  His awards include the Army Achievement Medal, the Army Commendation Medal with 3 oak leaf clusters and “V” Device, the Vietnam Service Medal with 4 bronze service stars, the Republic of Vietnam Campaign Medal with 60 Device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, the Combat Infantryman Badge, the Good Conduct Medal (6th Award), and the National Defense Service Medal.  His highest rank attained was sergeant first class.

While assigned to Fort Hood, Texas, the applicant was convicted by a general court-martial on 7 June 1990 of two specifications of committing indecent acts upon a female under 16 years of age.  As punishment he was reduced from pay grade E-7 to pay grade E-1 and required to perform hard labor without confinement for a period of 90 days.  The applicant retired in the pay grade of 
E-1 on 1 November 1990.

The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement on the retired list to the pay grade of E-6.  The AGRDB determined that the applicant’s general court-martial conviction he received as an E-7, not only diminished his service in that grade, but was so grievous that it diminished his entire military career.  The AGRDB therefore denied his request for advancement on the retired list on 2 October 2000.

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service 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 on active duty satisfactorily, (or, in the case if a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

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 concurs with the findings of the AGRDB that the applicant did not serve satisfactorily at the pay grade of E-6 as evidenced by his reduction by general court-martial conviction for two specifications of committing indecent acts upon a female under 16 years of age disobeying a lawful order and that he should be retained on the retired list in the pay grade of E-1.

2.  The applicant compromised the special trust and confidence placed in him as an NCO.  The applicant, as a NCO had the duty to protect his family instead of imposing on them severe acts of misconduct.  His severe acts of misconduct diminished the quality of his service below that meriting advancement on the retired list.

3.  Based upon the applicant’s overall service, the Board concluded that the applicant’s retired pay grade of E-1 was the highest grade he held satisfactorily while on active duty.

4.  The contentions of the applicant’s counsel have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  Also, the Board found no evidence that the applicant’s post traumatic stress disorder gave rise to his grievous acts of misconduct.

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

__LLS___  __JEA___  __BJL__  DENY APPLICATION

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

INDEX

CASE ID	AR2000047782	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.