RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070011350 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

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 advancement to the grade of sergeant first class (SFC)/E-7 on the Retired List.

2.  The applicant states, in effect, that he was reduced from SFC/E-7 to staff sergeant (SSG)/E-6 because he was singled out by three members of a Reduction Board, not because he did anything wrong.  He also adds that he gave the Army his heart and soul and his record speaks for itself.

3.  The applicant did not provide any documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a Regular Army Soldier who initially enlisted on 31 March 1964 and held primary military occupational specialty (MOS) 91B (Medical Specialist).  He subsequently had a series of extensions and/or reenlistments and attained the rank of SSG/E-6 on 1 July 1968 and SFC/E-7 on 5 August 1974. He was honorably retired from the Regular Army on 31 March 1984 in the grade of specialist four/E-4 and was placed on the Retired List effective 1 April 1984.

3.  The applicant's records show that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the German Army Marksmanship Award (Bronze), the Bronze Star Medal, the Good Conduct Medal (6th Award), the Army Service Ribbon, the Combat Medical Badge, and the Meritorious Unit Commendation. 

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 31 August 1964, for using provocative words to a squad leader which tended to induce a breach of the peace, on 28 August 1964.  His punishment consisted of forfeiture of $10 pay, 8 days of restriction, and 8 days of extra duty;

	b.  on 25 April 1966, for being absent without leave (AWOL) on or about 24 April 1966.  His punishment consisted of forfeiture of $41 pay, 14 days of restriction, and 14 days of extra duty;

	c.  on 1 October 1966, for failing to go to his appointed place of duty at the prescribed time, on 1 October 1966.  His punishment consisted of forfeiture of $55.30 pay, 7 days of restriction, and 7 days of extra duty; and,

	d.  on 16 November 1968, for failing to report to his appointed place of duty at the appointed time, on 15 November 1968.  His punishment consisted of forfeiture of $65 pay for one month.

5.  On 27 September 1982, an administrative Letter of Reprimand (LOR) was tendered to the applicant by his immediate commander.  The immediate commander cited the applicant's "culpable inefficiency and negligence in performing his duties."  The immediate commander also remarked on the applicant's conspicuous lack of leadership, lack of involvement in section and/or platoon operations, lack of control and influence over the students in his charge, lack of company composure, and reprehensible disregard of his required duties.  He added that the applicant's pattern displayed an almost total absence of professionalism and brought discredit upon the unit, the Noncommissioned Officer Corps, and the Army.

6.  On 22 October 1982, the applicant's battalion commander initiated a Bar to Reenlistment Certificate against the applicant citing his "attitude of disregard and non-compliance toward the Army Weight Control Program."  The Commander remarked that the applicant was initially enrolled in the weight control program in August 1979 and was removed in July 1980.  He was reenrolled in the program in February 1981 and despite subsequent counseling by members of his chain of command, he continued to display an apathetic attitude toward the seriousness of his weight problems.

7.  On 8 November 1982, the applicant acknowledged receipt of a copy of the Bar to Reenlistment Certificate and declined to submit a statement on his behalf. On 15 November 1982, the applicant's brigade commander recommended approval of the bar to reenlistment.  The bar was subsequently approved by the approval authority.

8.  The applicant's records reveal further disciplinary history which includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on 3 December 1982, for failing to go to his appointed place of duty at the prescribed time, three times on the same day, on or about 26 November 1982.  His punishment consisted of forfeiture of $725 pay for two months (the second month was suspended until 2 March 1983) and 14 days of restriction (suspended until 2 March 1983).  However, on 14 December 1982, the suspension of the punishment of forfeiture of $725 pay for two months (the second month was suspended until 2 March 1983) was vacated and the unexecuted portion of the punishment was ordered executed.

9.  On 14 December 1982, the applicant was relieved from all his duties by his battalion commander and was recommended for a reduction in grade for inefficiency.  The battalion commander remarked that the applicant was counseled formally and informally, supervised, and provided with every opportunity to perform to standard; yet, he failed.

10.  During the period 2 March 1983 through 4 March 1983, a Reduction Board convened at Fort Sam Houston, Texas, in accordance with paragraph 8-4 of Army Regulation 600-200 (Enlisted Personnel Management System) and determined that the applicant should be reduced for prolonged series of incidents involving inefficiency and additional shortcomings.  

11.  Item 28 [Findings of the DA Form 1574 (Report of Proceedings By Investigating Officer (Board of Officers)] shows that the applicant displayed a pattern of inefficiency and that he was ineffective as a sergeant due to his absence from his appointed place of duty and continuous pattern of misconduct.  The Board recommended the applicant be reduced to the grade of SSG/E-6.

12.  On 24 March 1983, the appointing authority approved the proceedings of the Reduction Board and ordered the applicant reduced to the rank of SSG/E-6 and reassigned outside the Academy of Health Science, Fort Sam Houston, Texas.

13.  On 26 April 1983, the applicant submitted a rebuttal statement.  He argued that he was notified of the reduction board on 17 January 1983 and that the board did not convene within 30 days of notification as required by Army Regulation 600-200.  He also added that although the convening authority approved an extension to convene that board, this extension was invalid since the convening authority exceeded his authority, which negated the board's findings and recommendations.  He concluded that his reduction was too harsh and that he had already been punished for his continuous misconduct.

14.  On 12 May 1983, the approval authority reviewed the record of the Board proceedings and the applicant's appeal and determined that there was no substantial irregularities occurred.  He denied the applicant's appeal and the applicant was reduced to SSG/E-6, effective 29 March 1983, accordingly.

15.  On 31 May 1983, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go to his appointed place of duty at the prescribed time, on the same day, 18 May 1983; and for failing to obey a lawful order, on 14 May 1983.  His punishment consisted of reduction to the grade of specialist five/E-5 and forfeiture of $551 pay for two months.

16.  On 29 August 1983, the applicant was tried at a Summary Court-Martial for on or about 14 June 1983, one specification of failing to go to his appointed place of duty at the prescribed time, one specification of failing to obey a lawful order by blowing into a breathalyzer tube, and one specification of self-incapacitation for the proper performance of duties as a result of previous indulgence in intoxicating liquor.  The Court found him guilty of all charges and specifications sentenced him to reduction to specialist four/pay grade E-4, forfeiture of $550 pay for one month, and 60 days of restriction (suspended for 6 months).  

17.  On 29 August 1983, the applicant's sentence of reduction to specialist four/ E-4, forfeiture of $550 pay, and 60 days of restriction was adjudged and the Summary Court-Martial convening authority approved the sentence and ordered its execution, but suspended that portion of the sentence pertaining to 60 days of restriction, for 6 months, at which time, unless the suspension was sooner vacated.  

18.  On 1 April 1984, the applicant was placed on the retired list as a specialist four/E-4.

19.  On 4 April 1995, the Army Grade Determination Review Board (AGDRB) convened and determined that the applicant had served satisfactorily as an interim SSG/E-6.  Accordingly, the AGDRBN directed the applicant be advanced on the retired list to the grade of SSG/E-6 effective 1 April 1994.

20.  Army Regulation 600-200, in effect at the time (January 1981), prescribed policies and procedures pertaining to career management, classification and reclassification, utilization, reenlistment, testing, evaluation, and promotions and reductions of enlisted personnel.  

21.  Chapter 8 of this regulation prescribed the procedures for reduction in grade. Paragraph 8-4 defined inefficiency as any act or conduct which clearly showed that the Soldier lacks those abilities and qualities required and expected of a person of that grade and experience.  Commanders considered misconduct, including conviction by civil court, as bearing on efficiency.  An assigned Soldier who had served in the same unit, for at least 90 days, could be reduced one grade for inefficiency.  The reduction authority for the grade, or a higher commander who had authority, could reduce him.  The commander starting the reduction action presented documents showing the Soldier's inefficiency to the reduction authority.  Reduction included, statements of counseling and documented attempts at rehabilitation by the chain of command or supervisors; copies of special Enlisted Evaluation Reports submitted due to inefficiency; and record of misconduct during the period concerned.  The documents were designed to establish a pattern of inefficiency rather than identify specific incident.  Reduction for inefficiency could not be used to reduce Soldiers for actions for which they had been acquitted because of Court-Martial proceedings; in lieu of Article 15, UCMJ; or to reduce a Soldier for a single act of misconduct.

22.  The commander reducing the Soldier informed him, in writing, of the action contemplated and the reasons.  The soldier acknowledged receipt of the letter, by endorsement, and submitted any pertinent matters in rebuttal.  Soldiers in the grades of E-5 through E-9 could request to appear before a reduction board.  If they declined appearance, they did so in writing and were considered to have accepted the reduction action.  A reduction board, when required, would be convened within 30 days after the individual was notified in writing.  The reduction authority could extend the 30 workday limitations for good cause.  A written justification was included in the file if an extension was granted.  The convening authority ensured the board met regulatory requirements regarding composition and membership.  For inefficiency cases only, at least one board member would be thoroughly familiar with the Soldier's field of specialization.  The reduction board convened within 30 workdays after the soldier was notified, in writing, by the reduction authority of the proposed action.  Soldiers appearing before the board were given at least 16 working days written notice before the date of the hearing so that the Soldier or his counsel had sufficient time to prepare the case.  Any Soldier in the grade E-5-E-9 could decline, in writing, to appear before the board or he could appear in person with or without counsel at all open proceedings. 
23.  AR 635-200 (Personnel Separations) sets policies, standards, and procedures for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, Army National Guard, and United States Army Reserve) who are retiring in their enlisted status.  Paragraph 12-6 of the regulation contains guidance on the advancement of enlisted Soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired Soldiers who held a higher grade and successfully served in that higher grade while on active duty.  Retired Soldiers who have less than 30 years of active service, whose active service plus service on the retired list total 30 years, are entitled to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  This provision applies to enlisted Soldiers who, at the time of retirement, were on active duty (or full-time National Guard duty).  When these Soldiers complete 30 years of satisfactory service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory.  Grade determinations for purposes of advancement on the retired list are made by the Army Grade Determination Review Board on behalf of the Secretary of the Army per AR l5–80.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to SFC/E-7 on the Retired List.

2.  There is no evidence in the applicant's records that he was singled out by members of the Reduction Board.  Additionally, the applicant committed most of his offenses while serving in the grades of SSG/E-6 and SFC/E-7.  There is no evidence in the available records and the applicant has not provided sufficient evidence to show that his acts of indiscipline were the result of being singled out.

3.  Evidence of record shows that the applicant did not serve satisfactorily in the grade of SFC/E-7.  He was punished under Article 15 of the UCMJ, received a Letter of Reprimand, relieved from his duties, and was reduced by a formal Reduction Board.  Therefore, the applicant's documented misconduct as a SFC/E-7 diminished the quality of his service at that grade.  Based on his prolonged record of indiscipline, the applicant's service and performance as a SFC/E-7 clearly did not meet the standards of acceptable conduct and performance of duty for a senior noncommissioned officer. 

4.  In view of the foregoing, there is no basis for granting the applicant's request and therefore the applicant is not entitled to relief.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  __mjnt__  __tmr___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




							John Slone
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070011350
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
129.0000
2.

3.

4.

5.

6.