IN THE CASE OF: BOARD DATE: 26 March 2021 DOCKET NUMBER: AR20200002931 APPLICANT REQUESTS: advancement on the Retired List to the rank/grade of sergeant (SGT)/E-5, the highest grade he held satisfactorily while serving on active duty, under the provisions of Title 10, U.S. Code, section 3964 (Higher Grade after 30 Years of Service: Warrant Officers and Enlisted Members). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Applicant's Memorandum (Application for Army Grade Determination Review Board), 1 October 2019 * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 3 September 1958 and 23 April 1962 * Headquarters, Martin Army Hospital, Memorandum (Medical Board Proceedings), 6 September 1966 * Department of the Army Special Order Number 235, 18 November 1966 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. He officially retired on 23 April 1962 in the rank/grade of private first class (PFC)/ E-3. He satisfactorily held the rank/grade of SGT/E-5 while serving on active duty. He now has a total of 54 years in active service and on the Retired List (1955 through 2019). b. His military service consists of his enlistment on 1 September 1955, promotion to the rank/grade of SGT/E-5 in 1960, reduction to the grade of E-4 via summary court- martial, reduction to the grade of E-3 via summary court-martial, discharge on 23 April 1962 with placement on the Temporary Disability Retired List, and permanent retirement with a disability rating on 18 November 1966. c. To this day he is not sure what elements came into play to justify two, almost back to back, reductions in rank generated by missing one group formation due to circumstances beyond his control. He missed a required formation by about an hour due to an automobile breakdown and then voluntarily withdrew from a training class he was no longer eligible to continue since he had been reduced to the grade of E-4, when the requirement for the class was the grade of E-5 and higher at that time. He would have been happy to have accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). d. He is now in his early eighties and is not requesting reinstatement for any monetary reasons, only correction of unfavorable actions in 1961 and to allow him to be able to say he was an SGT/E-5 while serving in the 82d Airborne Division, U.S. Army. 3. He enlisted in the Regular Army on 1 September 1955 for a period of 3 years. 4. He was honorably released from active duty and transferred to the U.S. Army Reserve on 3 September 1958. His DD Form 214 for this period shows his rank/grade as specialist four/E-4 (temporary) with a date of rank of 7 May 1957. 5. He again enlisted in the Regular Army on 22 October 1958 for a period of 3 years. 6. His DA Form 24 (Service Record) shows he was temporarily promoted to the rank/grade of SGT/E-5 per Headquarters, 82d Airborne Division Artillery, Special Orders 64, 1 April 1960. 7. The Battery A (105-milimeter) (Airborne), 319th Artillery Regiment, Fort Bragg, NC, memorandum (Reduction under Provisions of Article 15, UCMJ), 1 May 1961, states: a. On 1 May 1961, he failed to repair (to go to the appointed place of duty at the appointed time) for command reveille. This was the second offense for him of this nature. He had been cautioned numerous times regarding the duties and responsibilities commensurate with his grade. b. He had nothing to offer in defense and consented to accept punishment under the provisions of Article 15, UCMJ. The battery commander recommended his reduction to the next inferior grade under the provisions of Article 15, UCMJ. 8. The Headquarters, 82d Airborne Division Artillery, Fort Bragg, NC, memorandum (Reduction under Provisions of Article 15, UCMJ), 1 May 1961, shows the battery commander notified the applicant of his reduction to the rank/grade of corporal/E-4. The applicant acknowledged receipt and elected not to submit an appeal. 9. His service records do not contain a DA Form 2627 (Record of Proceedings under Article 15, UCMJ). 10. His DA Form 24 shows he was reduced to the rank/grade of corporal/E-4 per Headquarters, 82d Airborne Division Artillery, Special Orders 84, 2 May 1961. 11. The DA Form 458 (Charge Sheet), 4 May 1961, shows charges were preferred against the applicant for failing to go at the time prescribed to his appointed place of duty without proper authority, to wit: manifest call, 82d Airborne Jumpmaster School, on or about 2 May 1961. Only so much of the sentence as provided for reduction to the grade/rank of PFC/E-3 was approved. 12. His service records do not contain his court-martial proceedings. 13. His DA Form 24 shows he was reduced to the rank/grade of PFC/E-3 per Headquarters, 82d Airborne Division Artillery, Summary Court-Martial Number 25, 5 May 1961. 14. His DA Form 26 (Record of Court-Martial Conviction) shows he failed to go at the tie prescribed to his appointed place of duty without proper authority on or about 2 May 1961. His sentence consisted of reduction to the rank/grade of PFC/E-3, adjudged on 5 May 1961 and approved on 8 May 1961. 15. The Battery C, 1st Howitzer Battalion, 92d Artillery Regiment, memorandum, 12 February 1962, states: a. The applicant was substandard. His battery commander recommended his barment from further service in the Regular Army. b. His battery commander's basis for the above evaluation was: (1) the applicant's punishment under Article 15, UCMJ, for misconduct on 2 May 1961; and (2) the applicant's summary court-martial for violation of Article 86 (Absence Without Leave), on 4 May 1961, and pending court-martial charges for larceny of a carbine. c. The applicant's repeated acts of misconduct and lack of trust in him made him an undesirable Soldier. His actions brought discredit upon the Army. His battery commander would not approve his enlistment or reenlistment for his own vacancy. His battery commander rated his conduct as "unsatisfactory" and his efficiency as "unsatisfactory." 16. Headquarters, Department of the Army, Special Order Number 89, 18 April 1962, released him from his assignment and duty, having been determined to be unfit for duty by reason of physical disability, and placed him on the Temporary Disability Retired List in the rank/grade of PFC/E-3 effective 24 April 1962. 17. He retired on 23 April 1962. His DD Form 214 shows in: * item 3a (Grade, Rate or Rank) – PFC/E-3 (Permanent) * item 3b (Date of Rank) – 8 May 1961 * item 13a (Character of Service) – Under Honorable Conditions * item 24b (Total Active Service) – 6 years, 6 months, and 2 days 18. The Adjutant General's comment 2 (Determination of Grade for Retirement), 28 November 1962, states that although the applicant held the higher grade of SGT/E-5 (temporary), he was reduced from such grade due to misconduct. Accordingly, The Adjutant General determined he did not satisfactorily hold the grade of SGT/E-5 within the meaning of the law. Therefore, he was not eligible for retirement in a higher grade than PFC/E-3. 19. On 19 December 1962, the ABCMR denied the applicant's request for reinstatement to pay grade SGT/E-5. The Board determined that insufficient evidence had been presented to indicate probable material error or injustice. 20. Headquarters, Department of the Army, Special Order Number 235, 18 November 1962, removed him from the Temporary Disability Retired List on 29 November 1966 and permanently retired him on 30 November 1962 in his current grade/rank of PFC/ E-3. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the determination of The Adjutant General that, because he was reduced in grade due to misconduct, the highest grade he held satisfactorily was PFC/E-3. Based on a preponderance of evidence, the Board determined his retired list grade is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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, 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 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. 2. Army Regulation 637-5 (Personnel Separations – Separation Forms), 11 January 1960, prescribed forms to be used in the separation of Army personnel and were applicable to all officer and enlisted personnel on active duty. The purpose of the DD Form 214 is to provide the individual with documentary evidence of active military service and to furnish a vital record to interested Government agencies which assist the individual in obtaining the rights and benefits which may accrue to him as the result of such service. It is important that information entered thereon is complete and accurate. All available records will be used as a basis for preparation of the DD Form 214, including the DA Form 24 (Service Record), DA Form 20 (Enlisted Qualification Record), and orders. The specific instructions for item 3a (Grade, Rank, or Rate) stated to enter the grade in which serving at the time of separation, indicating whether permanent or temporary. 3. Title 10, U.S. Code, section 3964 (Higher Grade after 30 Years of Service: Warrant Officers and Enlisted Members), states 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 satisfactory, as determined by the Secretary of the Army. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002931 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1