ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 April 2019

	DOCKET NUMBER:  AR20160015808


APPLICANT REQUESTS:  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his highest grade held of staff sergeant (SSG)/E-6.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant requests to be advanced on the retired list to the highest grade that he held satisfactorily while on active duty under the provisions of 10 U.S. Code 3964  (Higher grade after 30 years of service:  warrant officers and enlisted members).  Although he retired on 1 December 1992 in the rank/grade of sergeant (SGT)/E-5, he previously held the rank/grade of SSG/E-6 while on active duty.  According to his calculation, he has a total of 30 years of time in active service and on the retired list.  

	a.  He understands that Army Regulation (AR) 15-80 (Army Grade Determination Review Board and Grade Determinations) states generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment (NJP) pursuant to Article 15, Uniform Code of Military Justice (UCMJ), or the result of the sentence of a court-martial.

	b.  However, he believes the Army Grade Determination Review Board should advance him on the retired list to the rank/grade of SSG/E-6 because after his demotion to SGT/E-5, he served satisfactorily and had advanced on the E-6 promotable list and the day he retired the points were lowered and he would have been promoted.  Also, while he was deployed during Desert Storm, his SSG/E-6 was unable to perform his job and he was placed in that position of leadership and did so honorably and with great success.

3.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 24 January 1978.

	b.  He served in:

* Germany from 23 May 1973 to 19 November 1974 and 22 September 1978 to 18 September 1981
* Korea from 11 June 1984 to 12 June 1985
* Saudi Arabia from 4 October 1990 to 3 April 1991

	c.  He accepted NJP on 7 July 1982 for failing to obey a lawful order.  His punishment included forfeiture of $300.

	d.  He accepted NJP on 2 August 1988 for wearing on his battle dress uniform the Special Forces Combat Patch, Parachutist Badge, Airborne Tab, and Special Forces Tab and wearing the Bronze Star with one service star, the Vietnam Service Medal with one service star, the Republic of Vietnam Campaign Medal, the Vietnam Presidential Unit Citation, the Republic of Vietnam Gallantry Cross Unit Citation, the Combat Infantryman Badge, the Parachutist Badge, the Special Forces Tab, the Airborne Tab, the Special Forces Combat Patch, and a German Marksman Award (silver) on his class A uniform.  His punishment included reduction to SGT/E-5 and forfeiture of $645 pay per month for 2 months.

	e.  On 1 November 1991, the U.S. Army Enlisted Records and Evaluation Center issued a memorandum, subject:  Department of the Army (DA) Imposed Bar to Reenlistment under the Qualitative Management Program (QMP).  The applicant acknowledged receipt of the DA Bar to Reenlistment on 15 November 1991 and elected extension in order to attain retirement eligibility.

	f.  He was honorably retired on 30 November 1992 for length of service.  His 
DD Form 214 shows he completed 14 years, 10 months, and 7 days of active service with 5 years, 1 months, and 24 days of prior active service.  

4.  By law, each retired member 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.

5.  By regulation, service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when caused by NJP pursuant to Article 15, UCMJ.  Highest grade served on active duty does not include merely being in a promotable status or serving in “acting” or holding a position or job title authorized at a higher grade.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  Based upon the review of the documentary evidence presented by the applicant and found within the service record, the Board found that the current DD Form 214 accurately depicted the rank of the applicant at the time of discharge.  Based upon the misconduct of the applicant, the Board concluded that no relief was warranted and recommended denying the applicant’s request for relief.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 15-80 (Army Grade Determination Review Board and Grade Determinations), governs the actions and composition of the Army Grade Determination Review Board.  It determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.

	a.  Paragraph 2-5 (Unsatisfactory service) states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when:

		(1)  The highest grade was a result of a terminal leave promotion
		(2)  Reversion to a lower grade was:

* Expressly for prejudice or cause
* Owing to misconduct
* Caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice

		(3)  There is sufficient unfavorable information to establish that the Soldier’s service in the grade in question was unsatisfactory.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time service in the grade.  However, since retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade.

	b.  Paragraph 3-2 (Thirty-year cases) states 10 U.S. Code 3964 entitles certain retirement members of the Army who are retired with fewer than 30 years of active service, when such member’s active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade served on active duty satisfactorily.  Each case is reviewed individually to determine the highest grade served on active duty satisfactorily.  This is not an automatic advancement on the retired list.  Highest grade served on active duty is the grade to which a Soldier was actually promoted and paid pursuant to a lawful promotion.  Highest grade served on active duty does not include merely being in a promotable status or serving in “acting” or holding a position or job title authorized at a higher grade.

3.  10 U.S. Code 3964 (Higher grade after 30 years of service:  warrant officers and enlisted members) states:

	a.  Each retired member of the Army covered by subsection (b) 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 of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

	b.  This section applies to:

* Warrant officers of the Army
* Enlisted members of the Regular Army; and
* Reserve enlisted members of the Army, who at the time of retirement, are serving on active duty

ABCMR Record of Proceedings (cont)	 AR20160015808


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