IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080005861 


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 his retired grade be changed from private/E-1 (PV1) to master sergeant (MSG).

2.  The applicant's arguments are provided by counsel.  

3.  The applicant provides a grade determination worksheet, personnel qualification record (DA Form 2-1), enlisted record brief (ERB), and separation document (DD Form 214) in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's retired grade be changed from PV1 to MSG.

2.  Counsel states, in effect, that the applicant's active duty service for 23 years was exemplary, and that during his service he received many awards.  He states that the applicant was selected for promotion to sergeant major (SGM), and was serving as a promotable MSG drill sergeant when he came under scrutiny for having improper relations with student trainees under his supervision.  The applicant accepted responsibilities for his actions and was found guilty by a General Court-Martial (GCM), which resulted in his reduction to the grade of PV1 and 1 year of confinement; however, the applicant was allowed to retire on 
1 March 2000.  

3.  Counsel further states that in October 2006, the applicant petitioned the Army Grade Determination Board (AGDRB) for a 30 year grade determination under Title 10 of the United States, Section 3964 (10 USC 3964).  However on 1 May 2007, the AGDRB denied the applicant's request for advancement on the Retired List based on the fact his reduction was the result of his GCM conviction.  During the AGDRB review a grade determination worksheet was prepared to track the applicant's promotion and demotions.  The creator of this document took it upon himself/herself to add a "smiley" face to the entry regarding the applicant's demotion to PV1.  Counsel contends that this action was appalling and unprofessional, shows bias on the part of the AGDRB, and provides suspicion as to whether the applicant's entire record was properly examined.  He further states that the applicant has suffered a tremendous loss by retiring as a PV1, and continues to carry the burden of his court-martial conviction.  Therefore, for reasons of equity and fairness, it is requested that the AGDRB determination be set aside, and that the applicant be allowed to be advanced to the grade of MSG on the Retired List. 

4.  Counsel provides a Brief outlining the applicant's request and arguments in support of the application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on 29 February 2000, he was honorably released from active duty (REFRAD) under the provisions of chapter 12, 
Army Regulation 635-200, by reason of sufficient service for retirement.  The 
DD Form 214 issued to him at this time shows he completed a total 23 years, 
8 months, and 6 days of active military service and that he held the rank of PV1 at the time.   

2.  The applicant’s Personnel Qualification Record (DA Form 2-1) confirms, in Item 18 (Appointments and Reductions), that he was promoted to the rank of staff sergeant (SSG) on 3 October 1983, sergeant first class (SFC) on 
20 February 1988, and MSG, the highest rank he held on active duty, on 
30 September 1996.   

3.  On 26 August 1999, a GCM found the applicant guilty, pursuant to his pleas, of violating Articles 92 and Article 134 of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:  Article 92, four specifications, by wrongfully having sexual relationships with three student trainees and by wrongfully violating a general order; and Article 134, five specifications, by three acts of committing adultery and two incidents of false swearing.  The resultant approved sentence was reduction to PV1, forfeiture of all pay and allowances, and confinement for 12 months.  
4.  On 28 September 1999, the United States Total Army Personnel Command, Chief, Enlisted Promotions Branch, removed the applicant's name from the July 1998, Sergeant Major (SGM) promotion list based on his field reduction in rank.

5.  Headquarters, United States Army Armor Center and Fort Knox, Orders Number 026-0153, dated 26 January 2000, directed the applicant's release from active duty on 29 February 2000, and his placement on the Retired List, in the grade of PV1 on 1 March 2000.  

6.  On 1 May 2007, the AGDRB after a thorough review of his Official Military Personnel File (OMPF) and record of trial denied the applicant’s request for advancement to the grade of MSG on the Retired List based on the offenses he committed that resulted in his GCM conviction.  

7.  Army Regulation 15-80, (Army Grade Determination Review Board and Grade Determination) establishes' policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations. The AGDRB is composed of three Army colonels (0-6) on active duty, who each independently review grade determination requests and make recommendations to the Deputy Assistant Secretary of the Army (DASA), Review Boards (RB), a civilian Senior Executive Service (SES) director, who makes the final decision in the case.  

8.  Paragraph 2-5, of the same regulation states, in pertinent part, that service in the highest grade held or an intermediate grade will normally be considered to be unsatisfactory when reversion to a lower grade is the result of a court-martial sentence, or punishment under Article 15, UCMJ.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. 

9.  Army Regulation 635-200 (Active Duty Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers based on length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the Regular or Reserve grade the Soldier holds on the date of retirement as directed in Title 10 of the USC, Section 3961 (10 USC 3961).  Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of Soldiers on the Retired List.  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 legal authority for this action is provided by 10 USC 3964.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and his counsel that he should be advanced to MSG on the Retired List based on equity and fairness was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was convicted of violating Articles 92 and 134 of the UCMJ by a GCM and was reduced to PV1.  His violations included having adulterous relationships with 3 of his student trainees.

3.  By regulation a Soldier will be retired in the grade he/she holds on the date of their retirement.  The evidence of record confirms that on 29 February 2000, after completion of his confinement sentence, the applicant was honorably REFRAD under the provisions of chapter 12, Army Regulation 635-200, by reason of sufficient service for retirement.  It also confirms that at the time of his retirement, he held the grade of PV1, and was therefore properly placed on the Retired List as a PV1 in accordance with the applicable law and regulation.

4.  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 denied his request for advancement on the retired list.  The DASA (RB) also concluded that the applicant should not be advanced to an intermediate grade, because the reduction was the result of a GCM conviction.  To suggest that this decision was influenced or biased by a chronology prepared by clerical personnel overlooks the seniority of the members of the AGDRB, all 0-6's in the applicant's case, and the DASA (RB) a civilian SES Level position.  In short, this issue lacks merit.

5.  Notwithstanding the poor judgment or error of clerical personnel referred to by counsel on the AGDRB worksheet, the evidence of record confirms that the processing of the applicant's request to be advanced on the Retired List was properly processed by the AGDRB, and the DASA (RB) in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the process.  

6.  Notwithstanding his excellent record of service prior to his GCM conviction, given the gravity of the offenses committed by the applicant that resulted in his GCM conviction, which included his improper relationships with trainees in his charge, it would not be appropriate to advance him on the Retired List.  


7.  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)                                         AR20080005861



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ABCMR Record of Proceedings (cont)                                         AR20080005861



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