MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2001063556

         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. Adraince		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Richard T. Dunbar		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 to the pay grade of
E-6 on the Retired List.

APPLICANT STATES: In effect, he was downgraded to the pay grade of E-5 and was told that effective in July 1985, he would receive E-6 pay.

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

On 30 November 1965, he was released from active duty (REFRAD) for the purpose of retirement. The separation document (DD Form 214) issued to and authenticated by the applicant on the date of his separation confirms that he held the rank and pay grade of sergeant/E-5 (SGT/E-5) on the date of his REFRAD, and that he had completed a total of 20 years, 4 months, and 26 days of active military service.

The applicant’s Enlisted Qualification Record (DA Form 20) confirms in
Item 33 (Appointments and Reductions), that the applicant held the rank and pay grade of sergeant first class/E-6 (SFC/E-6) from 16 August 1951 through
23 January 1955, and that he was reduced to SGT/E-5 on 24 January 1955. It also shows that that he further reduced from SGT/E-5 to corporal/E-4 (CPL/E-4) on 29 December 1955, and that he was promoted back to SGT/E-5 on
18 December 1959.

The applicant’s Military Personnel Records Jacket (MPRJ) contains a valid Application for Retirement (DA Form 2339), dated 10 September 1965, which confirms the applicant requested voluntary retirement, in the rank and pay grade of SGT/E-5, on 30 November 1965. In addition, the Office of the Adjutant General (OTAG), Department of the Army (DA), letter, dated 27 October 1965, that approved the applicant’s retirement is also on file in the MPRJ. This letter confirms that DA directed the applicant’s placement on the Retired List, in the rank and pay grade of SGT/E-5, effective 1 December 1965.

The applicant’s MPRJ contains no orders or other documents pertaining to his
24 January 1955 reduction from SFC/E-6 to SGT/E-5. The MPRJ is also void of any documents and/or information that provides clarification of the basis for the applicant’s reduction showing if it was due to his own misconduct or was administrative in nature.

---

The Army Grade Determination Review Board (AGDRB), which is designated by The Secretary of the Army to accomplish grade determination actions and had initial jurisdiction in this case, determined that the applicant’s Official Military Personnel File (OMPF) was too incomplete to render a decision on the applicant’s request for advancement on the Retired List. Specifically, the OMPF was void of any documents and/or information that shows the basis for the applicant’s 24 January 1955 reduction from SFC/E-6 to
SGT/E-5.

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.

On 22 January 2002, a member of the administrative staff notified the applicant by letter of the AGDRB requirement for additional information. It outlined what specific records and/or documents he could provide that would allow the AGDRB to review his case. He was also advised that if he did not have the necessary records or documents, he could provide a letter of explaining what his duties were while he served in the pay grade E-6, the reason for his reduction, or any other pertinent information that could allow the AGDRB to render a fair and equitable determination in his case. To date, the applicant has failed to respond to this letter, and his case was referred to this Board for evaluation.

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.

Army Regulation 15-80 establishes policies, procedures, and responsibilities of the AGDRB. Paragraph 1-6 contains guidance processing grade determinations and it states that for enlisted cases, the AGDRB will make final determinations on behalf of the Secretary of the Army. It will determine the highest grade in which a soldier has served satisfactorily for the purpose of advancement on the Retired List.

Paragraph 1-7 contains guidance on what service will not be considered satisfactory for grade determination purposes. It states, in pertinent part, that generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment (NJP), or the result of the sentence of a court-martial.

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, an enlisted soldier may be advanced to the highest rank and pay grade which they held and satisfactorily served in while on active duty. However, generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment (NJP), or the result of the sentence of a court-martial.

2. While the applicant’s record does show that he held the rank and pay grade of SFC/E-6, it is void of the specific facts and circumstances surrounding his
24 January 1955 reduction to SGT/E-5. As a result, the Board is unable to determine if the reduction was for cause and due to the applicant’s own misconduct. Thus, it is unable to render a fair and equitable judgment as to whether or not the applicant’s service in the rank and pay grade of SFC/E-6 was or was not satisfactory. Therefore, the Board concludes that there is insufficient evidence to support granting the requested relief.

3. 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.

4. 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

__MKP__ __EJA__ __RTD___ DENY APPLICATION

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


INDEX

CASE ID	AR2001063556
SUFFIX
RECON
DATE BOARDED	2002/04/11
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1965/11/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY)
REVIEW AUTHORITY
ISSUES
1. 319	131.0900
2.
3.
4.
5.