IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20080017022 


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 that he be advanced on the Retired List to the pay grade of E-7.

2.  The applicant states that his active service and service on the Retired List totals 30 years and he desires to be advanced on the Retired List to the pay grade of E-7, a grade in which he served satisfactorily.  He goes on to state that he served his country for 21 years and he received many awards.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his petition for clemency submitted by his defense attorney.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in Chicago, Illinois on 23 January 1979 for a period of 3 years, training as a Hercules Fire Control Crewman, and assignment to Europe.  He successfully completed his training and remained on active duty through a series of continuous reenlistments.

2.  He was promoted to the pay grade of E-6 on 1 April 1985 and on 10 August 1989, nonjudicial punishment was imposed against him for disobeying a lawful command from a superior commissioned officer to be in the cantonment area by 


the established curfew hours of 0100 hours.  His punishment consisted of a forfeiture of pay and extra duty.  The imposing commander directed that the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) be filed on the applicant's restricted fiche of his Official Military Personnel File (OMPF). 

3.  He was promoted to the pay grade of E-7 on 1 August 1991 and to the pay grade of E-8 on 1 August 1998.

4.  On 29 March 2000, the applicant was convicted by a General Court-Martial convened at Fort Sill, Oklahoma of one charge of wrongfully engaging in a personal relationship with a subordinate and one charge of adultery with a married woman not his wife.  He was sentenced to be reduced to the pay grade of E-4, a fine of $3,000.00 and confinement for 2 months if the fine was not paid.  However, the convening authority approved only so much of the sentence as pertained to reduction to the pay grade of E-4.  He was reassigned to another unit at Fort Sill.

5.  On 31 August 2000, the applicant was honorably released from active duty due to sufficient service for retirement and was transferred to the Retired List in the pay grade of E-4 effective 1 September 2000.  He had served 21 years, 7 months and 7 days of total active service.

6.  On 9 March 2005, the applicant applied to the Army Grade Determination Review Board (AGDRB) requesting that he be advanced on the Retired List to the pay grade of E-7 because he was an outstanding Soldier.

7.  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.  He reapplied to that board on 16 January 2006 and was advised that he should apply to this Board.

8.  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 on the Retired List totals 30 years.  This service may consist of combined active service and service in the United States Army Reserve Control Group (Retired).  Generally, a reduction resulting from a member's own misconduct is proof that the member failed to serve satisfactorily in the higher grade.



9.  Army Regulation 15-80 governs the actions and composition of the AGDRB.  It provides, in pertinent part, in paragraph 2-5, 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, owing to misconduct, caused by nonjudicial punishment pursuant to UCMJ, Article 15, or is the result of the sentence of a court-martial.  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, unless paragraph 2-5 applies. 

DISCUSSION AND CONCLUSIONS:

1.  In order to be advanced to a higher grade on the Retired List, the Soldier must have been advanced to a higher grade and satisfactorily served in that grade prior to his being placed on the Retired List.  

2.  The fact that the applicant was reduced to the pay grade of E-4 as a result of a court-martial sentence constitutes unsatisfactory service above the pay grade of E-4.

3.  The applicant abused his authority as an E-8 and thus diminished his service far below fully satisfactory.  He has provided no extraordinary mitigating factors that overcome the regulatory guidance that service in the highest grade or intermediate grade will be considered to have been unsatisfactory when reversion to the lower grade was the result of a sentence of a court-martial.

4.  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 the aforementioned 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)                                         AR20080017022





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ABCMR Record of Proceedings (cont)                                         AR20080017022



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