MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 August 2002
	DOCKET NUMBER:   AR2002075532

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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 advanced to the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on the Retired List.  

APPLICANT STATES:  In effect, that he would like his records reviewed in order to determine his eligibility to be advanced from the rank and pay grade of sergeant/E-5 (SGT/E-5) to SSG/E-6 under the provisions of Title 10 of the United States Code, section 3964.

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

On 31 December 1988, he was released from active duty (REFRAD) for the purpose of retirement.  On that date, he held the rank and pay grade of 
SGT/E-5.

On 21 July 1988, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 31 December 1988, in the rank and pay grade of SGT/E-5.  

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in item 18 (Appointments and Reductions) that he was promoted to SSG/E-6, the highest rank and pay grade he held on active duty, on 1 August 1982.  It also shows that on 2 December 1983, he was reduced to specialist/E-5, due to his own misconduct; and on 1 October 1985, he was laterally appointed to SGT/E-5. 

The record confirms that the applicant was reduced to the pay grade of E-5 as a result of his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) based on his operating a motor vehicle while drunk, which resulted in property damage.  In addition, he accepted NJP on two subsequent occasions for fighting with another soldier and for ration control card violations while he was serving in Korea.  

The separation document issued to him on the date of his separation, 
31 December 1988, confirms that he held the rank and pay grade of SGT/E-5 on the date of REFRAD.  On 18 August 1988, Orders Number 83-57, published by the 509th Personnel Services Center, APO San Francisco 96224-0289, directed the applicant’s REFRAD on 31 December 1988, and his placement on the Retired List the following day, 1 January 1989, in the rank and pay grade of SGT/E-5.

On 2 July 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List.  The AGDRB determined the applicant should not be advanced to the rank and pay grade of SSG/E-6 on the Retired List because he did not serve satisfactorily in that rank and pay grade.  This unsatisfactory service determination was based on the applicant’s record of NJP after he was promoted to SSG/E-6. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states, in pertinent part, that retirement will be in the Regular Army or Reserve grade the soldier holds on the date of retirement, as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.  

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.  

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 notes the applicant’s request that he be advanced to SSG/E-6 on the Retired List, but it finds an insufficient evidentiary basis to grant the requested relief.  

2.  The evidence of record confirms that the applicant was reduced to the pay grade of E-5 due to his own misconduct, based on Article 15 punishment.  Thus, the Board concurs with the determination of the AGDRB that the applicant’s service as a SSG/E-6 was unsatisfactory, and it concludes that his advancement to that rank and pay grade on the Retired List is not warranted.  

3.  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.

4.  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

__ FNE_ _  ___TSK_  __LEM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002075532	
SUFFIX		
RECON		
DATE BOARDED	2002/08/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1988/12/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.