ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 September 2019

	DOCKET NUMBER:  AR20180011296


APPLICANT REQUESTS: reinstate his highest grade held (Staff Sergeant (SSG)/E-6)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* high school transcripts of applicant’s dependent

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 states he requests to have his rank reinstated back to SSG/E-6, as it is on his original retirement order.  He believes that:

   a.  The Army Grade Determination Review Board should reinstate his rank listed on his original retirement order (Number 215-20, dated 2 August 1993), even though he was reduced in rank, as a result of a court martial sentence.  Due to some of the facts being left out during the special court martial, such as:

* during the in processing for on post housing, everyone must sign a stop pay form for basic allowance for quarters (BAQ), which was done before receiving any on post housing; housing department did not process the paperwork
* BAQ payments continued to be received even while he was waiting on retirement order
* company personnel administration center told the applicant to sign a document to validate whether or not his dependents were living in on post quarters with him, they were not at that time

   b.  The applicant’s military appointed legal counsel told him that there would be an appeal filed, but the response, which was denial, was not received until after his retirement.
3.  The applicant provides high school transcripts to show that his dependent was attending school in Richmond County schools in Augusta, GA from 1990 to 1993 and graduated 7 June 1994.

4.  A review of the applicant’s service record shows:

	a.  With prior service, he enlisted in the Regular Army (RA) on 28 June 1976.  He reenlisted in the RA on 10 April 1978 and extended his enlistment on 18 February 1982.  He was advanced to specialist five (SP5)/E-5 on 10 March 1979 to SSG/E-6 on 8 August 1982.

   b.  He reenlisted on 31 January 1985, and 8 November 1990.  He further extended his enlistment for 8 months (through his retention control point for his grade) which gave him a new expiration term of service (ETS) of 7 June 1994.

	c.  On 28 June 1994, the applicant was convicted by a special court-martial of one specification of intent to deceive by submitting official documents which contained false statement(s) and one specification of theft of government property.  The court sentenced him to reduction to specialist (SPC)/E-4.  The convening authority approved the sentence on 12 August 1994 and ordered it executed.

	d.  He was honorably retired on 31 August 1994, under the provisions of Army Regulation (AR) 635-200, Chapter 12 (Sufficient Service for Retirement) in the rank of SPC/E-4.  His DD Form 214 (Certificate of Release or Discharge) shows he completed 16 years, 4 months and 21 days of active service with 3 years, 9 months and 2 days of prior active service.

* Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) show SPC and E-4
* Block 12h (Effective Date of pay Grade) 1994-08-12

5.  The retirement order the applicant mentioned (Number 215-20, dated 2 August 1993) is not available in the applicant’s service records for the Board to review.

6.  Army regulation 635-5 (Separation Documents), prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release for active military service or control of the Army.  It established standardized policy for preparing and distributing DD Form 214.  For Blocks 4a and 4b (Grade, Rate or Rank) (Pay Grade), enter active duty grade of rank and pay grade at the time of separation.

7.  Department of Defense Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined relief was not warranted.  The Board acknowledges that it has no authority to throw away a court-martial conviction.  Although the Board has the authority to mitigate the sentence received at a court-martial, the Board concluded that based upon the misconduct, the reduction is rank was warranted. Therefore, the Board concluded there was no evidence of an error or injustice which would warrant making a change to the applicant’s military record.

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.  Department of Defense Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

3.  Army Regulation (AR) 600-8-19 (Promotions and Reductions), in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system.

   a.  Paragraph 6-3 (Rules for processing reduction for misconduct), receipt of documents establishing a sentence or finding of guilty a Soldier may be reduced even though an appeal is pending or has been filed.  

   b.  Paragraph 6-13 (Effective Date of Reduction), an enlisted Soldier who has been sentenced by a court martial to a reduction in grade is not reduced until a record of trial has been prepared and authenticated any appropriate legal review has been completed and the convening authority has approved and ordered the sentence to reduction executed.

4.  Army Regulation (AR) 635-5 (Separation Documents), prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release for active military service or control of the Army.  It established standardized policy for preparing and distributing DD Form 214.  Paragraph 2-8 (DD Form 214 Instructions), see table 2-1.  A sample of a completed DD Form 214 is shown in figure 2-1, item 4a and 4b (Grade, Rate or Rank) (Pay Grade), enter active duty grade of rank and pay grade at the time of separation.


ABCMR Record of Proceedings (cont)	 AR20180011296


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