| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Ms. JoAnn H. Langston | Chairperson | ||
| Mr. Raymond V. O’Connor, Jr. | Member | ||
| Ms. Barbara J. Lutz | Member |
APPLICANT REQUESTS: In effect, that he be advanced to the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on the Retired List.
APPLICANT STATES: In effect, that he was reduced in rank from SSG/E-6 to sergeant/E-5 (SGT/E-5) while serving on active duty. He now requests that he be advanced to SSG/E-6 on the Retired List because he has been retired for
10 years and his rank was not returned.
EVIDENCE OF RECORD: The applicant's military records show:
On 30 June 1991, he was released from active duty (REFRAD) for the purpose of retirement. On that date, he held the rank and pay grade of sergeant/E-5 (SGT/E-5).
On 9 March 1991, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 30 June 1991, in the rank and pay grade of SGT/E-5.
A Data for Retired Pay (DA Form 3713), dated 24 April 1991, prepared
during his retirement processing, contains the entry SGT/E-5 in Item 2 (Active Duty Grade) and Item 3 (Retired Grade). Item 8 (Highest Grade Held) contains the entry SSG/E-6. However, Item 10 (Retired Pay) confirmed that he would receive retired pay as a SGT/E-5.
The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in Item 18 (Appointments and Reductions) that he was promoted to SSG/E-6, the highest rank and pay grade he held on active duty, on 26 May 1982. It also shows that on 20 September 1990, he was reduced to SGT/E-5, due to his own misconduct.
On 23 May 1990, while serving as a SSG/E-6 on active duty in the Wisconsin Army National Guard (WARNG), the applicant accepted nonjudicial punishment (NJP) under the provisions of the Wisconsin Code of Military Justice (WCMJ), for driving a motor vehicle while under the influence of alcohol causing a serious accident. His punishment for this offense was a reduction to SGT/E-5.
The applicant appealed the punishment; however, on 29 August 1990, the assistant staff judge advocate concluded that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense committed. On 17 September 1990, the appropriate authority denied the applicant’s appeal.
The separation document issued to him on 30 June 1991, the date of his separation, confirms that he held the rank and pay grade of SGT/E-5 on the date of REFRAD. On 23 April 1991, Orders Number 079-081, published by the Department of Military Affairs, Office of the Adjutant General, Madison Wisconsin, directed the applicant’s REFRAD on 30 June 1991, and his placement on the Retired List the following day, 1 July 1991, in the rank and pay grade of SGT/E-5.
On 11 July 2002, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List. The AGDRB determined the applicant should not be advanced to the rank and pay grade of SSG/E-6 on the Retired List because he did not serve satisfactorily in that rank and pay grade. This unsatisfactory service determination was the result of his acceptance of NJP for driving a motor vehicle while under the influence of alcohol causing a serious accident, which resulted in his reduction to SGT/E-5 due to his own misconduct.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It states, in pertinent part, that retirement will be in the Regular Army 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, provides the legal authority for advancement 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 in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.
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 SSG/E-6 on the Retired List, but it finds an insufficient evidentiary basis to grant the requested relief.
2. The evidence of record confirms that the applicant was reduced to SGT/E-5 due to his own misconduct. Thus, the Board concurs with the determination of the AGDRB that the applicant’s service as a SSG/E-6 was unsatisfactory, and it concludes that his advancement to that rank and pay grade on the Retired List is not warranted.
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
__JHL __ __ RVO _ __BJL __ DENY APPLICATION
| CASE ID | AR2002076050 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/08/20 |
| 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. 319 | 131.0900 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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