RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 28 August 2007
DOCKET NUMBER: AR20070004588
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Ms. Catherine C. Mitrano
Director
Mr. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Mr. Paul M. Smith
Chairperson
Mr. Rodney E. Barber
Member
Mr. Rowland C. Heflin
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, In effect, that he be advanced to the rank of Master Sergeant (MSG)/E-8 on the retired list.
2. The applicant states he served honorably for 25 years and as a MSG prior to his court-martial. He feels that he served his sentence, and his military records justify advancement to the rank of MSG.
3. The applicant provides no additional documentation in support of this case.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 1 April 1977. He was promoted to MSG on 1 October 1994. His enlisted evaluations during the period he was a MSG show exemplarily ratings and no adverse information in his military records prior to the events leading up to his court-martial.
2. On 1 February 2000, the applicant was promoted to the rank of Sergeant Major (SGM)/E-9.
3. On 8 October 2003, the applicant was convicted, pursuant to his pleas, by a general court-martial of on or between 18 July 2002 and 25 July 2002, wrongfully using a government computer and communication system to engage in pornographic internet chat; that on or between 1 July 2001 and 30 July 2002, knowingly possess images of child pornography transported in internet commerce by computer; and that on or about 30 July 2002, wrongfully and unlawfully make under lawful oath a false statement. He was sentenced to be reduced to pay grade E-7.
4. On 1 January 2004, the applicant was retired in the rank of SFC/E-7 after completing 26 years and 9 months of creditable active service.
5. On 20 November 2006, the Army Grade Determination Review Board (AGDRB) denied the applicant's request for advancement on the retired list because about a year after being promoted to the grade of E-9, he began wrongfully possessing and transporting in interstate commerce by computer images of child pornography. He was subsequently convicted by a general court-martial for that offense, as well as for wrongfully using a government computer and communications system to engage in pornographic chat and for making a false statement. The AGDRB determined that he did not serve satisfactorily in the grade of E-9.
6. Title 10, U.S. Code, section 3964 provides that warrant officers and enlisted members may, when their active duty service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty.
7. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), paragraph 2-5, provides that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was the result of the sentence of a court-martial.
DISCUSSION AND CONCLUSIONS:
1. This Board concurs with the AGDRB that the applicant did not satisfactorily serve in pay grade E-9 as evidenced by his reduction by a general court-martial conviction that resulted in his reduction in pay grade from E-9 to E-7. His misconduct did not occur until one year after his promotion to E-9.
2. Army Regulation 15-80 states that service in the highest grade or intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was the result of the sentence of a court-martial; however, evidence of record clearly shows that the applicant did serve exemplarily for
5 years and 4 months in the intermediate pay grade of E-8. That exemplary service got him promoted to the grade of E-9 in the first place. Therefore, as a matter of equity, the applicant's grade on the retired list should be advanced to the pay grade MSG/E-8.
3. In view of the foregoing, the applicants records should be corrected as recommended below.
BOARD VOTE:
__PMS__ __REB __ __RCH__ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was advanced on the retired list on 1 April 2007, when he attained 30 years of service, in the rank and grade of MSG/E-8 and that the Defense Finance and Accounting Service pay to the applicant all retired pay due as a result of this correction.
_____ Paul M. Smith __
CHAIRPERSON
INDEX
CASE ID
AR20070004588
SUFFIX
RECON
DATE BOARDED
28 AUGUST 2007
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
MR. SHATZER
ISSUES 1.
129.0400.0000
2.
3.
4.
5.
6.
ARMY | BCMR | CY2010 | 20100010900
The AGDRB determined the applicant was not entitled to advancement on the Retired List in pay grade E-8 because of his general court-marital conviction. 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...
ARMY | BCMR | CY2008 | 20080005861
It states, in pertinent part, that retired Soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the Retired List totals 30 years. The evidence further shows that the DASA (RB), after receiving the votes and recommendations of the members of the AGDRB, determined that the applicant's service in the grade of MSG was not satisfactory due to his own misconduct and...
ARMY | BCMR | CY2015 | 20150001334
Counsel requests reconsideration, in part, of his earlier request for: * removal of all references to the applicant's Army Grade Determination Board (AGDRB) decision and reduction in rank/grade from colonel (COL)/O-6 to lieutenant colonel (LTC)/O-5 from his Official Military Personnel File (OMPF) * correction of the applicant's retired rank/grade to show COL/O-6 2. b. Paragraph 4a states, "Members of the United States Armed Forces, and other persons serving with, employed by or accompanying...
ARMY | BCMR | CY2013 | 20130008467
Counsel requests, in effect: a. removal of all references to an Army Grade Determination Review Board (AGDRB) and reduction to lieutenant colonel/O-5 for retirement purposes from the applicant's Army Military Human Resource Record (AMHRR); b. the applicant's retired grade be changed to colonel/O-6; c. removal of a general officer memorandum of reprimand (GOMOR), dated 14 June 2012, from his AMHRR; d. removal of all references to the GOMOR and underlying investigations from his AMHRR; and e....
ARMY | BCMR | CY2013 | 20130018426
On 1 March 2004, the Army Grade Determination Review Board (AGDRB) considered his request for advancement on the Retired List to E-8, as the highest grade he satisfactorily held. The evidence or record shows he was convicted by a special court-martial for wrongful marijuana usage. Army Regulation 15-80 provides that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade results from misconduct.
ARMY | BCMR | CY2008 | 20080017022
On 14 July 2005, the AGDRB convened and after a thorough review of his official records, the record of trial and the recommendation of the board members, the Deputy Assistant Secretary (Army Review Boards) denied any advancement on the Retired List. Title 10, United States Code, Section 3964 provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, when their active service and service...
ARMY | BCMR | CY2001 | 2001057694C070420
The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in block 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 21 February 1975, which is the highest rank he held while on active duty. On 24 August 2001, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request to be advanced to the rank and pay grade of MSG/E-8 on the Retired List. The evidence of record confirms that the...
ARMY | BCMR | CY2014 | 20140001760
Counsel requests reconsideration of the applicant's earlier request to remove the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 3 May 2000, and all relevant documents from his Official Military Personnel File (OMPF). They conducted a search of his work computer and then went to his home searching for child pornography. b. Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in...
ARMY | BCMR | CY2012 | 20120010299
The applicant requests in effect, that the Army Grade Determination Review Board's (AGDRB) decision be changed to show he is authorized retired pay in the rank of lieutenant colonel (LTC)/O-5 vice Major (MAJ)/O-4. For officers below the grade of brigadier general, the AGDRB will recommend to the DASA (Review Boards) for final determination, the highest grade in which an officer has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay, or...
ARMY | BCMR | CY2014 | 20140003932
The applicant states: * she served on active duty for 20 years and performed superbly in various leadership positions, from squad leader to first sergeant * in December 2011, she was convicted and sentenced to one year and one day of confinement * her chain of command initiated separation action against her for civil conviction but a separation board recommended her retention * she was allowed to stay until retirement through February 2013 but was placed on the Retired List as a private...