IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150006006 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 correction of his records to show that he was retired in the grade of E-7 vice E-6. 2. The applicant states: a. On 31 October 1975, Special Orders (SO) Number 217, dated 31 October 1975, discharged him [from the Regular Army (RA)] and he reenlisted in the rank/grade of specialist seven (SP7)/E-7. SO Number 219, dated 4 November 1975, promoted him from SP7 to sergeant first class (SFC)/E-7. SO Number 88, dated 4 May 1976, released him from active duty and placed him on the retired list in the rank of SFC. Orders 15-39, dated 19 July 1976, amended SO Number 88 to show he was placed on the retired list in the rank of SSG vice SFC. b. Orders 16-8, dated 20 July 1976, revoked SO Number 219, the order that promoted him to SFC. He has no orders that demoted him. The first and only order indicating his grade was other than E-7 is his retirement orders, SO Number 71-2, dated 4 October 1976. He believes he should have been retired as an E-7 since he reenlisted as an E-7 and was never demoted. 3. The applicant provides: * two DD Forms 214 (Report of Separation from Active Duty) * a memorandum, dated 24 October 1975 * eight orders, dated between 31 October 1975 and 4 October 1976 * a DA Form 2166-5A (Senior Enlisted Evaluation Report), dated 3 September 1976 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. Having had prior active and Reserve service, the applicant enlisted in the RA on 8 September 1969. On 17 July 1974, he was promoted to SP7. On 29 July 1974, he was assigned to the 257th Signal Company, Korea. 3. On 19 May 1975, he was convicted by a general court-martial of one specification each of stealing government property (telephone cable) valued at approximately $14,000, conspiring with two other Soldiers to commit larceny of telephone cable, and unlawfully operating a forklift to load the cable on a truck. He was sentenced to reduction to private/E-1, a bad conduct discharge, confinement for 9 months, and a forfeiture all pay and allowances. 4. On 30 June 1975, the convening authority approved the sentence and ordered it executed; but suspended the execution of that portion of the sentence that provided for the bad conduct discharge, confinement at hard labor, reduction to a grade in excess of reduction to E-6, and forfeiture in excess of $200 per month for 10 months was suspended for 12 months, unless the suspension was remitted or vacated (emphasis added). 5. On 20 August 1975, the United States Court of Military Appeals found a plea of guilty was entered pursuant to a pretrial agreement which contained limitations on the presentation of motions and rendered the agreement null and void. The court set aside the findings of guilty and the sentence and stated a rehearing may be ordered by the same or a different convening authority. 6. On 29 August 1975, he was assigned to Fort Lee, VA. 7. On 3 November 1975, the applicant was honorably discharged for the purpose of immediate reenlistment. The DD Form 214 he was issued for this period of service show his rank as SP7 with a date of rank (DOR) of 17 July 1974. He competed a total of 19 years and 26 days of net active service. 8. Item 29 (Remarks) of this DD Form 214 shows his extension of service was at the request of and for the convenience of the government. He reenlisted in the RA on 4 November 1975. 9. On 12 February 1976, upon further review the U. S. Army Court of Military Review found the findings of guilty and the sentence as approved by the proper authority were correct in law and fact and affirmed the findings of guilty and the sentence. 10. On 14 July 1976, by disposition form (DF), the Commander, Fort Lee, was notified of the court’s decision and that the applicant’s further petition had been denied. He was informed the applicant would be reduced to the grade of E-6 with a DOR of 20 June 1975 with a forfeiture of $200 per month for 10 months. His military records and retirement orders were to be adjusted to show the change in rank. 11. On 31 October 1976, the applicant was honorably retired from active duty in the rank of SSG and he was placed on the Retired List on 1 November 1976 in the rank of SSG. The DD Form 214 he was issued for this period of service shows his rank as SSG/E-6 with a DOR of 20 June 1975. He completed a total of 20 years and 23 days of net active service. 12. On 8 October 1986, the applicant submitted an application to the ABCMR for advancement on the Retired List to the grade of E-7 under the 30-year rule. The Board denied his application and determined the applicant had been properly reduced to the grade of E-6 as a result of punishment by a general court-martial, he had not served satisfactorily in the grade of E-7, and he would be retained on the Retired List in the grade of E-6. DISCUSSION AND CONCLUSIONS: The evidence of record confirms the applicant was reduced to SSG/E-6 on 20 June 1975 as a result of punishment imposed by a general court-martial and that was the rank/grade he held at the time of retirement. He was properly placed on the Retired List on 1 November 1976 in the rank of SSG, the rank he held at time, and the highest rank he held satisfactorily while serving on active duty. There is no error or injustice. 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 that 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) AR20150006006 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006006 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1