MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 September 2002
	DOCKET NUMBER:   AR2002077017

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Karen Y. Fletcher		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 on the Retired List to the rank and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, that he should be advanced on the Retired List in accordance with Army regulations based on his combined 30 years of active and retired military service.  In support of his application, he submits a copy of his separation document (DD Form 214), Application For Voluntary Retirement 
(DA Form 2339), retirement orders, and his promotion orders.

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

On 30 November 1985, the applicant was honorably released from active duty (REFRAD) for the purpose of retirement after completing a total of 20 years,
7 months, and 4 days of active military service. 

The applicant’s record reveals that on 1 May 1978, he was promoted to the rank and pay grade of SFC/E7, and that this was the highest rank he held while on active duty.  However, on 16 May 1984, he was convicted of striking a first lieutenant by a general court-martial (GCM).  His sentence included a reduction to staff sergeant/E-6 (SSG/E-6).

The DD Form 214 issued to and signed by the applicant on the date of his REFRAD for retirement confirms that he held the rank and pay grade of 
SSG/E-6 on that date. 

On 1 August 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request to be advanced to the rank and pay grade of SFC/E-7 on the Retired List.  The AGDRB based their denial on the fact that he was convicted of assaulting a first lieutenant by a GCM, which diminished the quality of his service as a SFC/E-7 sufficiently to render his service in that rank and pay grade unsatisfactory. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961). 

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers 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 satisfactorily served in while on active duty.

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 contention that he should be advanced to SFC/E-7 on the Retired List.  However, it concurs with the AGDRB determination that his active duty service in the rank and pay grade of SFC/E-7 was not satisfactory.

2.  The evidence of record confirms that the applicant was reduced to SSG/E-6 as a result of his conviction by a GCM, due to his own misconduct.  Therefore, the Board concludes that his service as an SFC/E-7 was not satisfactory and thus, the requested relief is not warranted in this case. 

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

__RVO_  __RJW___  ___KYF__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077017	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/26	
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.	129.0400	
2.		
3.		
4.		
5.		
6.