MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 12 July 2001
         DOCKET NUMBER: AR2001058540

         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:

Ms. Margaret K. Paterson		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Terry L. Placek		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, reconsideration of his request that he be promoted to the rank and pay grade of master sergeant/E-8 (MSG/E-8).

APPLICANT STATES: In effect, that he was recommended and selected for promotion by a Department of the Army (DA) promotion selection board in 1985 and was assigned a sequence number of 03477-55Z from the secondary zone of consideration. He states he moved on a permanent change of station to Redstone Arsenal, Alabama in June 1986 and remained there until he retired in the rank and pay grade of sergeant first class/E-7 (SFC/E-7) in September 1989.
He also indicates that at the time of his retirement, his chain of command was looking into why he had not received promotion orders to MSG/E-8 from DA.

In support of his application, he provides the enclosed memorandum from him to his Member of Congress (MOC) requesting assistance with his application; a commandant memorandum, dated 29 March 1988, which shows the results of a command inspection; a duty appointment memorandum, dated 18 April 1988, which shows he was assigned to perform duties as the Chief, Individual Unit Training Division, for the purpose of meeting and coordinating all requirements in accordance with the duties required of the division sergeant major (SGM); an extract of the DA MSG/E-8 promotion standing list that confirms that he was recommended for promotion with a sequence number of 03477; and various military documents pertaining to the quality of his duty performance.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the enclosed Memorandum of Consideration (AC-00191), dated 25 July 1990, prepared to reflect the Board's original consideration of his case.

On 30 September 1989, he was released from active duty (REFRAD) for the purpose of retirement after completing over 20 years active military service. On the date of his REFRAD he held the rank and pay grade of SFC/E-7 and on the following day he was placed on the Retired List in this rank and pay grade.

In 1985, the applicant was selected for promotion to MSG/E-8 by a DA promotion selection board and as a result was added to the MSG/E-8 promotion recommended standing list.

On 24 November 1986, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for testing positive for marijuana use on a urinalysis test. His punishment for this offense was a forfeiture of $700.00 and he elected not to appeal the punishment.

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On 3 December 1986, the applicant’s commander initiated a recommendation to remove him from the DA MSG/E-8 promotion standing list based on the offense for which he accepted NJP on 24 November 1986. On 17 December 1986, the applicant acknowledged receipt of this action and on 28 January 1987, he submitted a rebuttal.

On 13 January 1987, an administrative separation board of officers determined that the applicant should be eliminated from service based on his illegal drug use. However, this board further recommended that the discharge be suspended for 6 months and the findings and recommendations of this board were approved by the separation authority.

A Stand-By Advisory Board (STAB), which adjourned on 3 November 1987, recommended that the applicant be removed from the DA MSG/E-8 promotion recommended standing list and the Army Deputy Chief of Staff, Personnel (DCSPER) approved this recommendation.

On 23 December 1987, the Chief, Promotions Branch, Total Army Personnel Command (PERSCOM) addressed a memorandum to the commander of the United States Army Missile Command, Redstone Arsenal, Alabama, in which he informed the commander that the applicant had been removed from the DA MSG/E-8 promotion recommended standing list and requested that the applicant be notified of the removal action. This memorandum was further endorsed to the applicant’s unit commander for formal notification to the applicant and receipt of this endorsement was acknowledged by the unit commander on 13 January 1988.

The applicant, while still serving on active duty, applied to this Board requesting that his name be reinstated on the DA MSG/E-8 promotion selection list. He stated at the time that he had unknowingly ingested marijuana when he ate gumbo at a family reunion and that the removal action against him was improper because he was originally told the only punishment he would receive was the NJP he accepted in November 1986.

The applicant continued to serve on active duty until 30 September 1989, when he was REFRAD for the purpose of retirement and on 1 October 1989, he was placed on the Retired List in the rank and pay grade of SFC/E-7.

On 25 July 1990, a panel of this Board found no basis for granting the applicant’s request for reinstatement on the DA MSG promotion standing list and determined that he had failed to submit relevant evidence to demonstrate the existence of probable material error or injustice and published its findings in the enclosed decisional document (Case AC89-00191).

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Army Regulation 600-200, in effect at the time, stated, in pertinent part, that commanders could at anytime recommend a soldier’s name be removed from a DA recommended list. It further indicated that the recommendation must be fully documented and justified and that DA would make the final decision on the removal based on the results and recommendation of a STAB.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).

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. The Board noted the contention of the applicant that his chain of command was looking into the reasons why he was not promoted by DA given he was on the DA MSG/E-8 promotion standing list but finds this claim lacks merit.

2. The evidence of record confirms the applicant was removed from the
MSG/E-8 promotion standing list at the request of his commander and on the recommendation of a DA STAB in accordance with the applicable regulations in effect at the time. Further, it is clear the applicant was aware that he was removed from the promotion list prior to his REFRAD for the purpose of retirement on 30 September 1989.

3. The record also shows that this Board previously considered a request from the applicant that he be reinstated on the DA MSG/E-8 promotion list and after full consideration of his petition and all the evidence, on 25 July 1990, the Board denied relief. The Board finds that the evidence submitted by the applicant with this current application provides no additional independent evidence that would impact the earlier decision of the Board and therefore, relief is still not warranted in this case.

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4. Even though the applicant is not eligible for consideration for advancement on the Retired List by the Army Grade Determination Board, based on the ambiguity of his application, the Board also considered his case under advancement on the Retired List provisions of the law.

5. The record also shows that this Board previously considered a request from the applicant that he be reinstated on the DA MSG/E-8 promotion list and after full consideration of his petition and all the evidence, on 25 July 1990, the Board denied relief. The Board finds that the evidence submitted by the applicant with this current application provides no additional independent evidence that would impact the earlier decision of the Board and therefore, relief is still not warranted in this case.

6. Even though the applicant is not eligible for consideration for advancement on the Retired List by the Army Grade Determination Board, based on the ambiguity of his application, the Board also considered his case under advancement on the Retired List provisions of the law.

7. 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.

8. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__MKP__ __MHM__ __TLP__ DENY APPLICATION

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

CASE ID	AR2001058540
SUFFIX
RECON	1990/07/25
DATE BOARDED	2001/07/12
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1989/09/30
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 319	131.0900
3.
4.
5.
6.