IN THE CASE OF: BOARD DATE: 11 October 2011 DOCKET NUMBER: AR20110006508 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests advancement on the retired list to the highest grade he held of staff sergeant (SSG)/E-6. 2. He states he is entitled to advancement on the retired list to his highest grade of E-6 according to Title 10, U.S. Code, section 3964, which states each retired member of the Army who is retired with less than 30 years of active service is so entitled when his active service plus his service on the retired list totals 30 years. 3. He provides Title 10, U.S. Code, section 3964, and his Army Discharge Review Board Case Report and Directive. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 20 August 1980. 3. He was promoted to sergeant/E-5 on 1 May 1987 and to SSG/E-6 on 1 February 1995. 4. His service record contains orders published on 12 February 1999 which show he was promoted to sergeant first class (SFC)/E-7 on 1 March 1999. 5. His disciplinary history includes conviction: a. by a general court-martial on 14 September 1999 for wrongfully having a sexual relationship with a student trainee; false swearing (two specifications); conspiring to violate a lawful general order; assisting a private in being absent without leave; and violating a lawful general order. He was sentenced to a reduction to the grade of E-4 and reprimanded; and b. by a special court-martial on 9 February 2000 for wrongfully soliciting two Soldiers to destroy a DA Form 31 (Request and Authority for Leave) on two separate occasions. He was sentenced to a reprimand and a forfeiture of $300.00 pay for 5 months. 6. Orders published on 3 August 2000 show he retired from active duty on 31 August 2000 and he was placed on the Retired List in the rank of specialist (SPC)/E-4 on the following date. He completed 20 years and 11 days of total active military service at the time of his retirement. 7. Title 10, U.S. Code, section 3964, provides that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service. This service may consist of combined active service and service in the U.S. Army Reserve Control Group (Retired). The Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List on behalf of the Secretary for those who have attained 30 years of service. 8. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board and other organizations delegated to make grade determinations on behalf of the Secretary of the Army. Paragraph 2-5 states that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was the result of the sentence of a court-martial. DISCUSSION AND CONCLUSIONS: 1. The applicant served on active duty from 20 August 1980 through 31 August 2000. 2. He was promoted to SSG/E-6 on 1 February 1995 and SFC/E-7 on 1 March 1999. 3. He was reduced to SPC/E-4 on 14 September 1999 as a result of conviction by a general court-martial. He had an additional court-martial conviction in February 2000. Therefore, he did not hold the rank/pay grade of SFC/E-7 or any intermediate grade satisfactorily. 4. Orders published on 3 August 2000 show he retired from active duty on 31 August 2000 and was placed on the Retired List in the rank of SPC/E-4 on 1 September 2000. He completed 20 years and 11 days total active military service. 5. By law, retired Army personnel may be advanced in grade to the highest grade satisfactorily held while on active duty as determined by the Secretary of the Army upon completion of 30 years of service. 6. However, since he was reduced from the rank/pay grade of SFC/E-7 as a result of court-martial, and especially considering his further misconduct after that conviction, he is not eligible to be advanced on the Retired List to the rank/pay grade of SSG/E-6 as requested. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X___ ___X____ 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. ___________X___________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20110006508 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110006508 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1