MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 February 2003
         DOCKET NUMBER: AR2002077226

         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. Samuel A. Crumpler		Chairperson
Ms. Regan K. Smith		Member
Mr. Antonio Uribe		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 rank and pay grade of
first sergeant /E-8 (1SG/E-8) be reinstated.

APPLICANT STATES: In effect, that his Battalion Commander (BC) used the Army judicial system to reprise against him for an equal opportunity complaint he made against a friend of the BC. He claims that he pled and was found guilty of three specifications of assault against his wife. As a result, he was sentenced to be reduced and to be confined for 60 days. Prior to his trial, his BC ordered pre-trial confinement and he was placed in confinement at Fort Sill, Oklahoma, and he remained there for 78 days. The pre-trial confinement decision was later affirmed by the Magistrate, despite the lack of any attempt at imposing a lesser restraint. During the Magistrate’s review, the BC stated that he wanted to confine the applicant to protect him from his wife, and the BC admitted that he was not a flight risk and that he could obey orders.

The applicant also claims that two weeks after being placed in pre-trial confinement, the BC and Command Sergeant Major (CSM) read him the charges, and they advised him to accept a pre-trial agreement which would result in his reduction to staff sergeant/E-6 (SSG/E-6), and then everything would be over. They further informed him that if he did not agree, he would remain in
pre-trial confinement for a long time. The CSM advised him to take the deal, and the BC warned him that the prosecutor in the case was ruthless. During this conversation, both the BC and CSM knew that he was being represented by a Trial Defense Service (TDS) attorney. He claims a week later, a fellow 1SG called him and encouraged him to take the deal that was offered by the BC. He found out later that the 1SG called him at the request of his unit commander, who knew at that time that he was represented by a TDS attorney.

The applicant states that while he was in pre-trial confinement, his wife called his brigade commander, who was the convening authority for the special
court-martial, to discuss his issues. During this conversation, the brigade commander asked his wife if she was going to testify against him and repeat what she had said in her written statements, and added the comment that they really needed a conviction. He states that the brigade commander should not have talked to his wife because she was a potential witness in a court-martial and he was the convening authority.

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The applicant claims that after spending two months in pre-trial confinement, he was emotionally drained and physically sick of being locked up. At that time, he accepted a second deal negotiated by his attorney because he could no longer take the strain and he wanted to save his retirement. He states that sometime in December 1999, he ran into the brigade commander, who inquired about when he was getting out. He replied that this was up to the brigade commander and was contingent on his decision on whether to reduce him. The brigade commander stated that he was going to reduce the applicant, which effectively meant that he had made up his mind prior to reviewing his petition which was not submitted until February 2000.

In support of his application, the applicant provides a statement from his wife. In it, she claims that she and her husband were involved in an incident at their home in August 1999. At the time, she accused her husband of hitting her with a pick handle; however, she now claims he never hit her. She further states that at the time of the incident they were having serious marital problems and she wanted them to seek marriage counseling. However, there was not time in her husband’s schedule for marriage counseling because of the nature of his job.

The applicant’s wife indicates that at the time their marriage was falling apart and she believed that he would receive mandatory counseling as a result of this incident. However, her husband, the applicant, would never endanger her or their son. She states that she now realizes that she made a big mistake. She claims that she felt her husband was more concerned about his soldiers than his family. He would spend every minute with them, and when she wanted to see him, she would have to go to his work. She further states that in July 1999, when she sought help from his chain of command to get her husband to counseling, the suggestion was laughed at and she was ignored.

The applicant’s wife also states that she did not want the Army to take control of the incident because she knew what would happen, and her husband would be destroyed. She claims that her husband’s chain of command did not like him because his soldiers respected him. He was the only 1SG in his battalion that was in outstanding physical condition, and all the soldiers loved him because of his dedication. She states that she does not recall what she said to the police or to the prosecutor because when she gave her statement, she was taking an antidepressant medication, which can be checked in her medical record at Fort Leonard Wood, Missouri.

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

He served on active duty for 20 years, 1 month, and 18 days, from 13 June 1980 through 31 July 2000, at which time he was honorably separated for the purpose of retirement.

The applicant’s Official Military Personnel File (OMPF) contains a copy of Orders Number 351-9, dated 17 December 1998, issued by the Total Army Personnel Command (PERSCOM), which authorized the applicant’s promotion to master sergeant/E-8, effective 1 June 1999. His Personnel Qualification Record
(DA Form 2-1) confirms in Item 18 (Appointments and Reductions) that he was reduced to sergeant first class/E-7 (SFC/E-7) on 10 February 2000. The facts and circumstances surrounding the reduction action are not on file in the record.

Orders Number 096-0356, dated 5 April 2000, issued by Headquarters, US Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, authorized the applicant’s release from active duty on 31 July 2000, and his placement on the Retired List on 1 August 2000, in the retired grade of SFC/E-7.

The separation document (DD Form 214) issued to the applicant on the date of his separation from active duty, 31 July 2000, confirms that was honorably REFRAD by reason of sufficient service for retirement, and that he held the rank and pay grade of SFC/E-7 on that date. The applicant authenticated this document with his signature, thereby verifying that the information contained therein was correct at the time.

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.

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 his reduction was the result of a reprisal against him by his battalion commander. However, it finds insufficient evidence to support this claim.

2. The specific facts and circumstances surrounding the applicant’s pre-trial confinement and reduction are not on file in the applicant’s Official Military Personnel File (OMPF). Further, other than through a self-authored statement, the applicant also failed to provide any documentary evidence of reprisal or a record of his pre-trial confinement or reduction processing. Based on the lack of official documentation in regard to the proceedings in question, and given the applicant’s admission that he was represented by counsel, the Board must presume government regularity in the reduction process.

3. The Board also carefully considered the statement provided by the applicant’s wife, in which she admits that she falsely accused the applicant of hitting her. However, lacking any official record of the incident or of the applicant’s subsequent processing, the Board is unable to render an evaluation on the relevance of her admission in regard to the specific requested relief.

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

__SAC__ __RKS _ __ AU __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077226
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/11
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2000/07/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1030	117.0003
2.
3.
4.
5.
6.