MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   

         BOARD DATE: 22 July 2003
         DOCKET NUMBER AR2002073643

         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. John N. Slone		Chairperson
Mr. Thomas D. Howard		Member
Mr. Thomas Lanyi		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 he advanced on the Retired List to the highest rank and pay grade he obtained while serving on active duty.

APPLICANT STATES: In effect, that after 20 years of active military service and 10 years on the Retired List, his rank and pay grade should be advanced to the highest rank and pay grade he obtained while on active duty. He claims that for the last 11 years he has received retired pay as a private/E-1 (PVT/E-1) and he now requests advancement on the Retired List. He indicates that he has been a productive citizen since his retirement, as evidenced by the fact he earned his bachelor’s degree and is currently working for the Federal Government at
Fort Lewis, Washington. In support of his application, he provides several documents from his Official Military Personnel File (OMPF).

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

The applicant’s military records show that on 31 July 1991, he was honorably 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. On the date of his separation, he had completed a total of 20 years, 10 months, and 17 days of creditable active military service, and he held the rank and pay grade of PVT/E-1.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms, in Item 18 (Appointments and Reductions), that the applicant was promoted to the rank and pay grade of sergeant/E-5 (SGT/E-5) on 18 March 1971 and staff sergeant/E-6 (SSG/E-6) on 10 September 1977. On 10 February 1982, after serving as a SSG/E-6 for almost 5 years, he was promoted to sergeant first class/E-7 (SFC/E-7), which is the highest rank and pay grade he held while serving on active duty.

The applicant’s record also shows that during his active duty tenure, he completed over 11 years of foreign service, which included combat service in the Republic of Vietnam (RVN). His service in the RVN resulted in his being awarded the Combat Infantryman Badge (CIB) and the Presidential Unit Citation (PUC) for his involvement in combat operations against the enemy. He also received the Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Republic of Vietnam Gallantry Cross Unit Citation with Palm, and Vietnam Service Medal for his service in the combat theater. The applicant also completed a tour in the Republic of Korea under conditions that authorized him to be awarded the Armed Forces Expeditionary Medal (AFEM).

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In addition to his combat related awards, the applicant’s record also shows that during his active duty tenure he earned the following other awards: Meritorious Service Medal; Army Commendation Medal; Army Good Conduct Medal (5^th Awd); Army Service Ribbon; Overseas Service Ribbon (5^th Awd); Noncommissioned Professional Development Ribbon; Overseas Bars (1); Expert Qualification Badge (M-16 Rifle); and Drill Sergeant Identification Badge. He also completed the basic airborne course and was awarded the Parachutist Badge, and his unit service and performance in this skill ultimately led to his earning the Senior Parachutist Badge.

The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 October 1968, while he was serving as a specialist/E-4 (SPC/E-4), for disobeying an order to turn in his weapon.

The record contains no derogatory information or any indication that any other disciplinary action was taken against the applicant between 1969 and 1982, or specifically during the period he served as either a SGT/E-5 or SSG/E-6. While serving in these grades, the applicant served in many leadership, staff, and training positions of responsibility that included, infantry squad leader, operations sergeant, weapons group instructor, and drill sergeant. He received excellent evaluations and was recognized with individual awards that included the Army Commendation Medal.

After the applicant was promoted to SFC/E-7 on 10 February 1982, he accepted NJP on 4 August 1982, for fraternizing with a private female trainee and disrespect toward a superior noncommissioned officer. However, his subsequent evaluations as a SFC/E-7 were excellent and he earned the Meritorious Service Medal for exceptionally meritorious service for the period
27 February 1985 through 17 February 1988.

In May 1989, the applicant was tried and convicted of carnal knowledge with his 15 year old daughter for over a four month period, and obstruction of justice, by transporting the victim, a government witness, to the airport and putting her on a flight to Panama. This resulted in his reduction from SFC/E-7 to PVT/E-1, and in his serving approximately two years of a three year confinement sentence.

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The applicant’s separation document (DD Form 214), dated 31 July 1991, confirms that on that date, he was honorably REFRAD for the purpose of length of service retirement. At the time, he had completed a total of 20 years,
10 months, and 17 days of creditable active military service. It also verifies that he held the rank and pay grade of PVT/E-1, and on the following day was placed on the Retired List in that rank and pay grade.

Since his REFRAD and placement on the Retired List, the applicant has completed the requirements for a bachelor’s degree and he is currently employed by the Federal government at Fort Lewis, Washington.

On 23 May 2002, the Army Grade Determination Review Board (AGDRB) convened to consider the applicant’s advancement on the Retired List, and it denied advancement on the Retired List based on the applicant’s general
court-martial conviction and the resultant sentence which included his reduction from SFC/E-7 to PVT/E-1.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and it states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.

Title 10 of the United States Code, section 3964 (10 USC 3964) provides the legal authority for the advancement on the Retired List to a higher grade after
30 years of service for warrant officers and enlisted members. It states, in pertinent part, that each retired enlisted member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which he/she served on active duty satisfactorily, as determined by the Secretary of the Army.

Army Regulation 15-80 establishes policies, procedures, and responsibilities of the AGDRB. Paragraph 2-4 provides guidance on grade determination considerations. It states that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay, and each case will be considered on its own merits.

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Paragraph 2-5 of the same regulation states that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: a.) the highest grade was a result of a terminal leave promotion;
b.) reversion to a lower grade was expressly for prejudice or cause, owing to misconduct, caused by nonjudicial punishment pursuant to UCMJ, Article 15, and the result of the sentence of a court-martial; c.) there is sufficient unfavorable information to establish that the soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade.

Paragraph 2-6 of the AGDRB regulation provides general guidance on determining satisfactory service in a lower grade. It states that if service in the highest grade held was unsatisfactory, the soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2-5 applies.

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 request that he be advanced to the highest grade he obtained on active duty. However, it finds an insufficient evidentiary basis to grant the requested relief.

2. The evidence of record confirms that the applicant was convicted of carnal knowledge with his 15 year old daughter on a number of occasions and obstruction of justice by a general court-martial in May 1989. As a result, he was reduced to private/E-1 and placed in confinement.

3. The record also confirms that on 31 July 1991, after completing approximately two years of his three year confinement sentence, he was honorably 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. At the time, he held the rank pay grade of PVT/E-1, and he was placed on the Retired List in that rank and pay grade in accordance with the applicable law and regulation.

4. On 23 May 2002, the Army Grade Determination Review Board (AGDRB) convened to consider the applicant’s advancement on the Retired List, and it denied advancement on the Retired List based on the applicant’s general
court-martial conviction and the resultant sentence which included his reduction from SFC/E-7 to PVT/E-1.

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5. The Board carefully considered the applicant’s overall record of service and his post service activity, and it finds many positive aspects of both his active duty service and his conduct subsequent to his discharge. However, given the seriousness of the offenses of which he was convicted, the Board did not find these accomplishments were sufficiently meritorious to warrant his advancement on the Retired List at this time. Thus, it has concluded that the requested relief is not warranted in this case.

6. 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.

7. 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

_TDH__ __JS__ __TL__ DENY APPLICATION

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

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.