MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 November 2001
         DOCKET NUMBER: AR2001060100

         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
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		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)

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APPLICANT REQUESTS: In effect, reconsideration of his request for restoration of his former rank and pay grade of sergeant major/E-9 (SGM/E-9), effective
1 February 1983, and all back pay and allowances due as a result.

APPLICANT STATES: In effect, that he attained the rank of SGM/E-9 on
1 February 1983 and should have been retired and paid based on that rank and pay grade because it was the highest active duty grade he had attained. In support of his application, he provides his separation document (DD Form 214), a Department of the Army (DA) Standby Advisory Board (STAB) promotion selection memorandum and promotion order, dated 3 June 1988.

COUNSEL CONTENDS: In effect, that the applicant submitted an application for correction of military records in 1990 based on the fact that he had been retired in the rank and pay grade of master sergeant/E-8 (MSG/E-8) instead of
SGM/E-9, which was the highest grade he attained on active duty. Counsel claims that purportedly the reduction in grade resulted from an administrative board procedure, however, since his original application was submitted no one has been able to locate his Official Military Personnel File (OMPF) to substantiate the facts in regard to this issue. He indicates that at this time, the applicant again applies to have this error corrected and to be provided all back pay and allowances due as a result.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the enclosed memorandum of (Docket Number: AC89-05231) prepared to reflect the Board's original consideration of his case on 20 December 1989.

The applicant’s military records were available to this Board and they confirm that on 30 June 1990, he was released from active duty (REFRAD) under the provisions of Title 10 of the United States Code, section 3914, by reason of length of service retirement, after having completed a total of 20 years, 5 months, and 29 days of active military service.

The separation document (DD Form 214) issued to the applicant on the date of his separation shows that he held the rank and pay grade of MSG/E-8 on the date of his REFRAD. It also contains his signature in block 21 (signature of person being separated) which confirms that he verified the information contained in the DD Form 214 on the date he was separated.

While serving as a MSG/E-8 in a Troop Program Unit (TPU) of the United States Army Reserve (USAR), the applicant was ordered to active duty for 731 days in the Special Active Duty for Training (SADT) program, in the rank and pay grade of sergeant first class/E-7 (SFC/E-7), effective 15 October 1979. He was assigned to a District Recruiting Command to perform duties as a USAR field recruiter.

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On 13 August 1980, the applicant signed a document that converted his SADT program tour to the Active Guard/Reserve (AGR) program tour; on 5 February 1984, he signed a document extending his enlistment; and on 15 September 1984, he reenlisted in the USAR. In all these contract documents that the applicant authenticated with his signature, he attested to the fact that his rank and pay grade was SFC/E-7. In addition, the evaluation reports he received between October 1979 and June 1986 all confirmed that held the rank and pay grade of SFC/E-7 and that he was performing duties in position and military occupational specialty that authorized an E-7 skill level.

On 3 December 1986, based on an inquiry from the applicant, Army Reserve Personnel Command (ARPERSCOM) officials made a grade determination on the applicant that indicated that his rank and pay grade should be MSG/E-8. The action was based on the absence of a reduction order to show the applicant was administratively reduced to SFC/E-7 at the time of his voluntary entry on active duty in an SFC/E-7 USAR field recruiter position. At that time, ARPERSCOM officials also concluded that it may have been appropriate for his records to be reviewed for promotion to SGM/E-9 by a STAB.

On 11 December 1986, the applicant’s active duty order was amended based on the ARPERSCOM grade determination. This amendment showed that the applicant entered active duty in the rank and pay of MSG/E-8 with a DOR of
10 January 1976. The applicant’s evaluation report for the period March 1987 through February 1988 reflected that he was serving in the rank and pay grade of MSG/E-8.

An undated DA memorandum, issued by the Office of Promotions, Reserve Components, St. Louis, Missouri, indicated that the applicant had been selected for promotion to SGM/E-9 by an AGR STAB under the criteria established for the mandatory board that met on 27 January 1982. His promotion effective date was identified as 1 February 1983. This memorandum stipulated that in order to be promoted to SGM/E-9 the applicant had to be in a promotable status and a serving as a member of the AGR on the effective date of his promotion.

Orders Number 095-1, dated 3 June 1988, authorized the applicant’s promotion to SGM/E-9 with a date of rank of 1 February 1983 and it contained instructions that advised the applicant to apply to this Board to have the effective date of his promotion corrected.

The applicant’s record contains a disciplinary history that includes his receiving three letters of reprimand (LOR) during his active duty tenure in the AGR program. The first on 11 April 1983, for being absent without leave (AWOL) from
31 January to 17 February 1983; the second on 5 May 1987, for sexual harassment; and the last on 31 May 1989, for misuse of a government credit card.
On 27 October 1989, the Office of the Chief, Army Reserve (OCAR) provided an advisory opinion to this Board. It indicated, in effect, that the applicant was ordered to active duty on 2 October 1979 for the purpose of serving in an authorized E-7 position as a USAR field recruiter. It further stated that all USAR field recruiter positions were authorized at the E-7 level only. It further stated that the applicant’s records contained properly executed oaths of extension and reenlistment documents attesting to his status as a member of the AGR program in pay grade E-7, with no indication that he ever questioned the rank and pay grade at the time these agreements were entered into.

OCAR officials further indicated that sometime in 1989, the applicant requested a copy of his reduction order from his career advisor and he was advised to contact his former TPU administrator to obtain a copy. Instead the applicant contacted ARPERSCOM, where officials elected to render a grade determination based on the absence of a reduction order. It was further indicated that between 1983 and 1985 the applicant was considered and not selected for promotion to MSG/E-8 three times by properly constituted AGR MSG/E-8 promotion selection boards. Further, OCAR officials confirmed that under normal circumstances when a soldier enters active duty in an AGR program and the duty position calls for a lower pay grade than currently held, a voluntary administrative reduction order is published by the losing command the day prior to entry on active duty. Although, the applicant’s reduction order could not be found, this does not change the USAR policy that consistently held that soldiers entering active duty for USAR field recruiter positions enter in a pay grade no higher than E-7. It was further opined that applicant properly entered active duty in pay grade E-7 and was subsequently not selected for promotion to pay grade E-8 while on active duty. However, OCAR did confirm that the applicant entered an E-8 position in the AGR effective 29 June 1987.

On 20 December 1989, a panel of this Board denied the applicant’s request to have his records corrected to show he was promoted to the pay grade of E-9, effective 1 March 1983. In effect, this decision was based on the fact that the Board disagreed with the ARPERSCOM position that there was no evidence to show the applicant was reduced to SFC/E-7 at the time he voluntarily entered active duty in that rank and pay grade. The Board also concluded that the ARPERSCOM grade determination and the resultant subsequent action taken to amend the applicant’s active duty order to show he was a MSG/E-8 with a
10 January 1976 DOR were erroneous. Consequently, it found that his consideration and selection for and promotion to SGM/E-9 by a STAB was also in error and not appropriate.

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The Board finally indicated, based on the evidence, it would recommend that OCAR investigate the applicant’s promotion to pay grade E-8 and E-9 and take necessary action regarding this matter. Finally, it found there was no basis for granting the applicant’s request for a retroactive promotion to SGM/E-9.

On 29 May 1990, Orders Number 102-2, issued by Headquarters, Fifth United States Army, Fort Sam Houston, Texas, reduced the applicant from SGM/E-9 to MSG/E-8, effective 16 May 1990.

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 be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the retired list totals 30 years. The legal authority for this action is provided by Title 10 of the Untied States Code, section 3964
(10 USC 3964).

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 notes the contention of the applicant and his counsel that the applicant’s rank and pay grade should be restored to SGM/E-9 because that was the highest grade he attained while serving on active duty. However, it finds insufficient new evidence that would call into question the original denial decision rendered by this Board on 20 December 1989.

2. The evidence of record clearly shows that the applicant voluntarily entered active duty in the SDAT/AGR programs to perform duties in an authorized
SFC/E-7 position as a USAR field recruiter. The Army policy in effect at the time required that a member accept an administrative reduction in order to enter active duty if the SDAT/AGR position they were accepting was authorized a pay grade lower than they held.

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3. The applicant’s record contains AGR contract agreements that confirm he was aware that he was entering active duty to perform duties as a USAR field recruiter in the rank and pay grade of SFC/E-7. There is absolutely no indication that he ever contested these contracts at the time he entered into them or that he was dissatisfied with their terms.

4. In view of the applicant’s acceptance of the AGR contract terms, the Board finds the subsequent grade determination made by ARPERSCOM based on the absence of a reduction order was erroneous and did not comply with the Army policy in effect at the time. The absence of a reduction order did not alter the fact that the applicant accepted the terms of the AGR contract agreement that included his administrative reduction to SFC/E-7 in order to enter active duty as an SFC/E-7 USAR field recruiter. Therefore, the Board concludes that his promotions to MSG/E-8 and SGM/E-9 were based on an erroneous grade determination that was invalid and violated the AGR promotion policy in effect at the time.

5. Notwithstanding the fact that it appears his promotion to MSG/E-8 was invalid and based on an erroneous grade determination, the Board will not render an unfavorable recommendation in regard to this promotion or the applicant’s subsequent REFRAD and placement on the Retired List in this rank and pay grade. This determination is based on the Board’s policy not to place an applicant in a less favorable position than when they applied, coupled with the existence of a properly constituted DD Form 214 that confirms he was a
MSG/E-8 on the date of his REFRAD and on the following day was accordingly placed on Retired List in that rank and pay grade.

6. The Board does not find this policy latitude extends to the applicant’s request that his rank and pay grade be restored to SGM/E-9. The evidence of record confirms that he was promoted to SGM/E-9 based on an erroneous grade determination. Notwithstanding the absence of a reduction order, the record clearly establishes that he voluntarily entered active duty as an SFC/E-7 to perform duties as a USAR field recruiter, which required he be administratively reduced. Further, he was reduced from SGM/E-9 to MSG/E-8 by the appropriate authority in accordance with a 1989 decision rendered by this Board.

7. Further, there is no evidence contained in the record that shows that the applicant was serving on active duty in an authorized SGM/E-9 AGR position and was in a promotable status in the AGR on the promotion effective date identified in the DA promotion memorandum that authorized his SGM/E-9 promotion. Therefore, the Board finds there is insufficient evidence to support restoring the applicant’s rank and pay grade to SGM/E-9.

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8. In addition, the established evidence of record, coupled with the applicant’s extensive disciplinary history while serving on active duty, compel this Board to conclude there is no basis to render a satisfactory service determination that would be necessary to authorize his advancement to SGM/E-9 on the Retired List and it concludes this relief is not warranted.

9. 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.

10. 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 __ __BJE__ __KYF __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060100
SUFFIX
RECON
DATE BOARDED	2001/11/08
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1991/06/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 319	131.0900
3.
4.
5.
6.