IN THE CASE OF:	  

	BOARD DATE:	  14 May 2008

	DOCKET NUMBER:  AR20080002338


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 he receive a grade determination granting him the highest grade held.

2.  The applicant states, in effect, that he believes his rank should be reinstated to staff sergeant (SSG) or sergeant (SGT).  He states that he is a service- connected disabled Vietnam combat veteran and had served in the United States Marine Corps (USMC), United States Army Reserve (USAR), and California Army National Guard (CAARNG).  He claims the CAARNG did not properly assign him to the Individual Ready Reserve (IRR) as he requested and he was reduced in rank when he believed he was in the IRR.  He states that he completed the necessary forms and spoke with CAARNG unit administrators in the late 1980's and believed he had been transferred to the IRR and was not required to attend drills.

3.  The applicant provides the following documents in support of his application:  Separation Documents (DD Forms 214), dated 25 October 1968 and 25 October 1971; Retiree Account Statement; Report of Physical Examination (SF 88), dated 17 June 1987; Retirement Credit Record (NGB Form 23); and identification (ID) card.



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's record shows that he initially served in the USMC from 15 July 1965 through 25 October 1968, at which time he was honorably separated for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he held the rank of SGT, which he had attained on 1 October 1968, and that he had earned the National Defense Service Medal (NDSM), Good Conduct Medal (GCMDL), Vietnam Campaign Medal (VCM), and Vietnam Service Medal (VSM).

3.  On 26 October 1968, the applicant reenlisted in the USMC for 3 years.  He served on active duty in this status for an additional 3 years through 25 October 1971, at which time he was honorably discharged.  The DD Form 214 he was issued at this time shows he held the rank of corporal, which he had attained on 20 October 1970.  It also shows that he earned the NDSM, VSM, VCM, GCMDL, Combat Action Ribbon (CAR), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.  There is no indication why the applicant was reduced from SGT to CPL during this period of service.

4.  On 11 April 1972, the applicant enlisted in the USAR, and on 18 June 1987, he entered the CAARNG.

5.  The applicant's record contains a Personnel Qualification Record 
(DA Form 2-1) prepared on 11 July 1987 and reviewed on 2 January 1988.  Item 18 (Appointments & Reductions) shows he was promoted to SSG on 17 June 1987 and that this is the highest grade he held.  It also shows he was reduced to SGT on 11 March 1990, to specialist four (SP4) on 15 October 1990, and to PFC on 5 November 1990.



6.  The applicant's Official Military Personnel File (OMPF) contains Headquarters, 240th Signal Battalion, CAARNG Orders 8-3, dated 11 March 1990, which reduced the applicant from SSG to SGT, by reason of misconduct.  It also contains Headquarters, 240th Signal Battalion, CAARNG Orders 36-3, dated 5 November 1990, which reduced the applicant from SP4 to PFC by reason of inefficiency.

7.  On 12 December 1990, the applicant was discharged from the CAARNG.  The separation document (NGB Form 22) he was issued at the time confirms he received a general under honorable conditions discharge (GD) and that he held the rank of PFC at the time.  It also shows he was transferred to the USAR Control Group (Reinforcement).

8.  A Reserve Personnel Accounting System (RPAS) statement of service on file confirms he accrued a total of 3171 retirement points, that he completed a total of 20 years, 5 months, and 4 days of qualifying service for non-regular retirement.

9.  Department of the Army (DA) United States Army Human Resources Command, St. Louis, Missouri, Orders P10-793130, dated 19 October 2007, directed the applicant's retirement and placement on the retired list on 15 October 2007, in the retired grade of PFC/E-3.

10.  The applicant provides a SF 88, dated 17 June 1987, which documents the enlistment physical examination he took to enter the CAARNG.  This document contains the entry E-7 in Item 2 (Grade and Component or Position).  He also provides a NGB Form 23 and an ID card, issued on 9 January 1988, which list his grade as SSG/E-6.

11.  On 11 March 2008, the Army Grade Determination Review Board (ADGRB) returned the applicant's case without action because it lacked the jurisdiction to act on the case under the provisions of Title 10 of the United States Code, Section 3964, and lacked the authority to correct an error or injustice.

12.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB.  Paragraph 2-4 provides guidance on grade determination considerations.  It states that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay, and each case will be considered on its own merits.  Paragraph 2-5 provides guidance on unsatisfactory service and states, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his retired grade should be changed to SSG or SGT was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, service in the highest grade held or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause.

3.  The evidence of record in this case shows that the applicant had attained the rank of SGT in the USMC on 1 October 1968, and that on 25 October 1971, the date of his discharge from the USMC, he held the rank of CPL, with a date of rank of 20 October 1970.  Although there are no facts and circumstances related to the applicant's reduction from SGT to CPL in the USMC, it is clear he was reduced in rank.

4.  The record also confirms that while he was serving in the CAARNG, the applicant was reduced from SSG to SGT for misconduct and was reduced from SP4 to PFC for inefficiency.  As a result, it is clear these reductions, which resulted in his retired grade of PFC, were expressly for prejudice or cause.  Therefore, in the absence of any evidence of record or independent evidence provided by the applicant that show these reductions were improper or unjust, there is an insufficient evidentiary basis to support granting the requested relief.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x ____  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.



	_______x_______________
	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)                                         AR20080002338


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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