IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080000398 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her military records be corrected to show she was placed on the retired list in the rank and pay grade of sergeant first class (SFC)/E-7 which was the highest grade she held.
 
2.  The applicant essentially states that she served as an SFC/E-7 for 12 years and earned the Legion of Merit and the Army Commendation Medal during that time frame.  She also states that she was told that she had to wait until retirement to request that her retired rank and pay grade be changed to SFC/E-7, that she did so on several occasions, and that she was finally sent a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552).  She further states that her brigade commander at the time would not hear her case because he believed that she would retire in the rank and pay grade of SFC/E-7.

3.  The applicant provides an undated continuation sheet; a memorandum, dated 13 June 1995, in which her brigade commander denied her request for restoration of her rank; and a DD Form 2656-8 (Survivor Benefit Plan [SBP] – Automatic Coverage Fact Sheet), dated 15 October 2007 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she served in the Regular Army from 24 May 1971 to 24 November 1972, and then was honorably discharged 

under the provisions of Chapter 8, Army Regulation 635-200 (Personnel Separations), due to a pregnancy.  However, she subsequently enlisted in the Army National Guard on 12 December 1973 for a period of 1 year, and was honorably discharged on 11 December 1974.  She then enlisted in the Army National Guard on 20 February 1975 for a period of 2 years, and was honorably discharged on 19 February 1977.  On 20 November 1979, she enlisted in the United States Army Reserve (USAR); however, on 14 July 1980, she enlisted in the Army National Guard in the pay grade of E-5.  She was promoted to staff sergeant (SSG)/E-6 effective 12 December 1980, and was promoted to SFC/E-7 effective 26 November 1982.

2.  On 16 June 1994, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for:

	a.  absenting herself without authority from her unit on or about 25 May 1994 and remaining so absent until on or about 2 June 1994;

	b.  falsifying an official military document, namely, a DA Form 3349 (Physical Profile);

	c.  making a false official statement after having been sworn in and then writing her statement on a DA Form 2823 (Sworn Statement); and

	d.  conspiring to defraud the government.

3.  The applicant's punishment for the aforementioned offenses was a reduction in rank and pay grade from SFC/E-7 to sergeant (SGT)/E-5, effective 16 June 1994.

4.  On 10 June 1995, the applicant was discharged from the Army National Guard and reassigned to the USAR Control Group (Retired Reserve).  The NGB Form 55 (Report of Separation and Record of Service) that was prepared at the time of her discharge on 10 June 1995 essentially shows that her rank and pay grade at the time was SGT/E-5 and that her date of rank was 16 June 1994.

5.  Orders, dated 13 July 2006, retired the applicant and placed her on the retired list effective 28 October 2006 in the rank and pay grade of SGT/E-5.

6.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) generally states that a grade determination will be based on the 

Soldier's overall service in the grade in question, either on active duty or other 
service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.  It also provides, in pertinent part, that circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the grade at which the misconduct was committed.

7.  Paragraph 2-5 of this same regulation provides, in pertinent part, 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 expressly for prejudice or cause, was owing to misconduct, caused by NJP pursuant to Article 15 of the UCMJ, or the result of the sentence of a court-martial.  One specific act of misconduct may or may not form the basis for a determination that the overall time served in that grade was unsatisfactory regardless of the period of time served in grade.  This regulation further 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.

8.  Army Regulation 15-80 also provides, in pertinent part, that grade determinations for individuals retired for nonregular service under Title 10, U.S. Code, section 12731, are conducted automatically by the Army Reserve Personnel Command [now named the U.S. Army Human Resources Command, St. Louis, Missouri] and other separation authorities when individuals are placed on the retired list.  Some 30-year cases, however, must be initiated by a written request from the retiree concerned.  When a reduction from the highest grade held was caused by misconduct, inefficiency, or for cause, the retiree must initiate the grade determination process at the 30-year mark or later.  In such cases, the retiree is presumed not to have served satisfactorily in the higher grade; therefore, the retiree must request to initiate a grade determination review if the retiree believes advancement is appropriate.  Regardless of when the 30-year grade determination is accomplished, resulting advancement on the retired list will not be effective until the 30-year mark.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show she was placed on the retired list in the rank and pay grade of SFC/E-7 which was the highest grade she held.

2.  While the applicant indeed served as an SFC/E-7 for over 11 years, she subsequently was reduced to the rank and pay grade of SGT/E-5 for going absent without leave for 8 days, falsifying an official military document, making a false official statement after having been sworn in, and conspiring to defraud the government.  As a senior noncommissioned officer (NCO), she had the duty to support and abide by the UCMJ and to set the example for subordinate Soldiers. By committing the aforementioned offenses of the UCMJ, the applicant knowingly risked a military career, violated the trust and confidence placed in her as a senior NCO, and undoubtedly caused an adverse impact the morale of her command.  Notwithstanding the applicant's service as an SFC/E-7 prior to her offenses, it was determined that these offenses so far outweighed her service as an SFC/E-7 that placing her on the retired list in the rank and pay grade of SFC/E-7 cannot be justified.

3.  However, while the applicant's service as an SFC/E-7 was not deemed to be satisfactory as a result of her committing the aforementioned offenses, she did successfully serve in the rank and pay grade of SSG/E-6.  In view of the foregoing, and as a matter of equity, it would be appropriate to place her on the retired list in the rank and pay grade of SSG/E-6.  
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by advancing her on the retired list to the rank and pay grade of SSG/E-6               28 October 2006, with entitlement to all back pay and allowances from that date.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to advancing her on the retired list to the rank and pay grade of SFC/E-7.




      _________XXX________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000398



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ABCMR Record of Proceedings (cont)                                         AR20080000398



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