MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 December 2001
	DOCKET NUMBER:   AR2001065101

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Harry B. Oberg		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be advanced on the Retired List to the highest rank and pay grade he held on active duty and that he receive pay accordingly. 

APPLICANT STATES:  In effect, that on 2 March 1998, his active duty service and time on the Retired List equaled 30 years and he wishes to receive retired pay in the highest grade he held on active duty.  

EVIDENCE OF RECORD:  The applicant's military records show:

He served on active duty a total of 20 years and 11 days until 28 February 1991, when he was honorably released from active duty (REFRAD), in the rank and pay grade of sergeant/E-5 (SGT/E-5), for the purpose of retirement.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in block 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on 
5 August 1982, which is the highest rank he held while on active duty.  It also verifies that on 29 September 1989, he was reduced to SGT/E-5 for misconduct as a result of a nonjudicial punishment (NJP) action imposed under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).    

Between 5 August 1982 and 28 September 1989, while serving as a SSG/E-6, the applicant received two general officer (GO) letters of reprimand (LORs), dated 4 December 1987 and 28 September 1989 respectively, for two separate incidents of his driving while intoxicated (DWI).

On 29 September 1989, the applicant accepted NJP for being absent without leave (AWOL) from 6 to 18 September 1989.  His punishment for this offense included a reduction to SGT/E-5, forfeiture of $500.00 per month for 2 months, and 30 days of extra duty.  Finally, on 2 October 1990, subsequent to being reduced, he received a third GO LOR for DWI.  

The record contains a properly constituted separation document (DD Form 214), which was signed by the applicant on the date of his retirement.  This document shows that on 28 February 1991, he was REFRAD under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement.  It further confirms that he held the rank and pay grade of SGT/E-5 on the date of his separation and that on the following day he was placed on the Retired List in that rank and pay grade.  

On 21 November 2001, the Army Grade Determination Review Board (AGDRB) evaluated the applicant’s record to determine if he should be advanced to the rank and pay grade of SSG/E-6 on the Retired List.  They determined that the applicant’s service as a SSG/E-6 was not satisfactory due to two separate DWI offenses and they also considered the fact that he committed a third DWI offense subsequent to his reduction to SGT/E-5.  Therefore, the AGDRB voted to deny his advancement to SSG/E-6 on the Retired List. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets the policy and procedure for the voluntary retirement of soldiers based on length of service.  It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement.

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade they held and satisfactorily served in while on active duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  By law and regulation, retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty when their active duty service and time on the Retired List equals 
30 years. 

2.  However, after carefully evaluating the applicant’s entire record of service, the Board finds it concurs with the AGDRB determination that his service as a SSG/E-6 was not satisfactory and that he should not be advanced to SSG/E-6 on the Retired List.  

3.  The evidence of record confirms that the applicant was reduced from 
SSG/E-6 to SGT/E-5 due to his own misconduct, as a result of accepting NJP for a 13 day AWOL offense.  In addition, he committed two DWI offenses while serving as a SSG/E-6 and a third subsequent to his being reduced to SGT/E-5.  Thus, the Board concludes that relief is not warranted in this case. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__FNE___  __TAP__  __HBO___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001065101	
SUFFIX		
RECON		
DATE BOARDED	2001/12/06	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/02/28	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.