MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002073144

         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. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		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, that his retired rank and pay grade be changed from private first class/E-3 (PFC/E-3) to staff sergeant/E-6 (SSG/E-6).

APPLICANT STATES: In effect, his retirement rank and pay grade should be changed based on his long career of honorable service, of which over 4 ½ years was served in the rank and pay grade of SSG/E-6. He claims that he is a patriotic person and was proud to serve our country for over 37 years, 22 years of which were served on active duty and in an active status with the United States Army Reserve (USAR). He first enlisted in the Army in 1962, at the age of 20, and served on active duty honorably for nearly 3 years until 1965, at which time he received an early out to attend college. He completed college requirements in June 1966, and received a bachelor of science (BS) degree in Business and Communications. He worked for 8 years and being dissatisfied with his career progression, he reenlisted in the Army in 1974. He served until September 1980, at which time he had a small break in service until January 1981, at which time he joined the USAR. In 1981, he was promoted to the rank and pay grade of specialist five/E-5 (SP5/E-5). In October 1984, he was promoted to SSG/E-6 and served honorably in that rank and pay grade until 1988, at which time he had two misdemeanor incidents that resulted in his being reduced two ranks and pay grades. He had a brief break in service, but remained in the inactive Reserve. He reenlisted and again became an active Reservist in 1992. He served honorably in units in Florida and transferred to Rome, Georgia, in 1995. He was deployed to Germany to support the mission in Bosnia in late 1995. While serving on this active duty deployment, he mistakenly signed a head-count roster, while he was unknowingly drawing separate rations. As a result of this incident, he accepted nonjudicial punishment (NJP) that resulted in his reduction to PFC/E-3. He unfortunately was unable to improve his rank due to age and time in service limitations. He concludes that even though he made some mistakes, he does not believe they warrant his having to retire at such a low rank and pay grade. He requests that his file be reviewed and that he hopes this will result in his being allowed to retire with dignity at the highest rank he held.

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

On 19 August 1998, the applicant was notified of his eligibility for retired pay at age 60 in a letter (Twenty Year Letter) from the Army Reserve Personnel Command (ARPERSCOM) and in March 1999, he was transferred to the USAR Retired Reserve in the rank and pay grade of PFC/E-3.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in Item 18 (Appointments and Reductions) that on 5 October 1984, the applicant was promoted to the rank and pay grade of SSG/E-6, which is the highest rank he held during his service. On 8 January 1989, he was reduced to specialist four/
E-4 (SP4/E-4) and on 18 July 1996, he was reduced to PFC/E-3.
The applicant’s record also confirms that on 14 November 1988, he accepted nonjudicial punishment (NJP) for shoplifting. His punishment for this offense included a suspended reduction to the pay grade of E-5. On 8 January 1989, he accepted a second NJP for shoplifting, which resulted in the vacation of the suspended reduction imposed by the 14 November 1988 NJP and a further reduction to SP4/E-4.

On 18 July 1996, the applicant accepted NJP for signing a dining facility meal roster while receiving a separation ration allowance. His punishment for this offense included a reduction to PFC/E-3.

On 30 April 2002, the Army Grade Determination Review Board (AGDRB) considered the applicant’s request to be placed on the Retired List in the highest rank he held, SSG/E-6. After thoroughly reviewing the applicant’s Official Military Personnel File (OMPF), the AGDRB determined that it would not be appropriate to change his retired pay grade because he had been reduced due to his own misconduct.

Title 10 of the United States Code, section 1406, states in Part B (2)
(Non-Regular Service Retirement) that the monthly retired base pay of a person who is entitled to non-regular retired pay will be based on the rates applicable on the date when retired pay is granted based on the highest grade held satisfactorily by the person at any time in the armed forces.

Army Regulation 135-180 implements statutory authorities governing the granting of " retired pay " to soldiers and former Reserve components soldiers. Paragraph 2-11 contains guidance on the computation of retired pay and states, in pertinent part, that service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army's Ad Hoc Review Board for final determination of the soldier's retirement grade if, during the mandatory review of the soldier's records it is determined that any of the following factors exist: revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to NJP action, or
court-martial; or there is information in the soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

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 applicant’s contention that he should receive retired pay as a SSG/E-6 based on his overall record of satisfactory service, of which
4 years was served in that rank and pay grade. However, it finds the factors raised are not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms that the applicant held the rank and pay grade of PFC/E-3 on the date he transferred to the Retired Reserve and that he was appropriately authorized retired pay in that pay grade. In addition, the Board notes that the AGDRB determined that the applicant’s service in higher pay grades was not satisfactory due to his being reduced from those higher grades due to his own misconduct, and this Board concurs with that determination.

3. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the retired grade determination process. Therefore, it finds that the requested 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

_RVO___ ___JPI__ __PM____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073144
SUFFIX
RECON
DATE BOARDED	2002/05/30
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999
DISCHARGE AUTHORITY	AR 135-180
DISCHARGE REASON	Non-Regular Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 306	129.0400
2.
3.
4.
5.
6.