IN THE CASE OF:	  

		BOARD DATE:	        26 March 2009

		DOCKET NUMBER:  AR20080019105 


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, advancement on the Retired List to the rank of Staff Sergeant (SSG)/E-6.

2.  The applicant states he was reduced from SSG to Sergeant (SGT)/E-5.  He contends the reason for his reduction was post traumatic stress disorder (PTSD) from his Regular Army service in Vietnam.

3.  The applicant provides:

	a.  an addendum to his application wherein he explains the Department of  Veterans Affairs (VA) has granted him a 50 percent service-connected disability for PTSD;

	b.  a copy of his 18 December 1970 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing his rank as SSG and his service in Vietnam from 12 August 1967 to 15 March 1969;

	c.  a copy of Orders P10-389306, U.S. Army Reserve Personnel Command (now U.S. Army Human Resources Command, or HRC), St. Louis, MO, dated 31 October 2003, retiring him and placing him on the retired list as a SGT/E-5, effective 7 February 2004; and

	d.  NGB Form 22 (Report of Separation and Record of Service) showing his service with the Michigan Army National Guard (MIARNG) from 18 December 1974 through 1 June 1991, at which time he was placed in the Retired Reserve in the rank of SGT/E-5.

CONSIDERATION OF EVIDENCE:

1.  With 4 years, 4 months, and 4 days of total active Federal service, the applicant was honorably discharged from the Regular Army by reason of expiration of term of service in the rank of SSG on 18 December 1970.  During his active Federal service, he served in Vietnam as an infantryman and an armor crewman.  He received the Combat Infantryman Badge.

2.  The applicant was without military service until he enlisted in the MIARNG on 18 December 1974.  His rank upon enlistment was SSG.  He served as a SSG until 2 October 1977, when he was reduced by Orders 21-1, 1071st Maintenance Company, Camp Grayling, Grayling, MI, dated 1 October 1977, by reason of misconduct under Section 15, Michigan Code of Military Justice.  This section covers disciplinary punishment for minor offenses, serving correctional custody, imposition of punishment upon enlisted member by officer in charge; suspension, remission, or mitigation of punishment; appeal; disciplinary punishment not bar to trial by court-martial; records of proceedings; right to demand trial by court-martial; and applicability of forfeiture to pay and allowances.  The nature of the applicant's misconduct is unknown.

3.  The applicant never regained his rank.  He was discharged on 1 June 1991 and placed in the Retired Reserve as a SGT.  The applicant turned 60 years old on 7 February 2004.  In preparation for his entitlement to retired pay, HRC-St. Louis conducted a records review to determine the highest grade satisfactorily held for retired pay purposes.  In that review, it was noted that he was first promoted to SSG on 8 January 1970 and held that rank until he was honorably discharged on 18 December 1970.  It was also noted that he enlisted in the ARNG as a SSG on 18 December 1974.  His misconduct was noted as the reason for his 2 October 1977 reduction.  Although the exact reason for his failure to be advanced to SSG on the Retired List is not known, it is clear he was retired as a SGT.

4.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers.  It provides, in pertinent part that the Retired Activities Directorate, HRC-St. Louis will screen each retirement applicant's record to determine the highest grade held by him or her during his or her military service.  In arriving at the highest grade satisfactorily held, the following criteria will apply:

   a  If the Soldier was transferred to the Retired Reserve or discharged prior to 25 February 1975, retired grade will be that which the Soldier held at time of transfer to the Retired Reserve or discharge, unless the Soldier held a higher grade at least 185 days or six calendar months on active duty or in an active reserve status as a commissioned officer or enlisted Soldier.  If higher grade held was that of a warrant officer, Soldier must have served on active duty or in an active Reserve status for at least 31 days. 

   b  If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active Reserve status for at least 185 days or six calendar months.  A warrant officer must have served on active duty or in an active Reserve status for at least 31 days. 

   c  Service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army's Ad Hoc Review Board for final determination of the Soldier's retirement grade if, during the mandatory review of the Soldier's records by the Retired Activities Directorate it is determined that any of the following factors exist:

   (1)  Revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ), or court-martial; or 

   (2)  There is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 

5.  There is no record that HRC-St. Louis forwarded the applicant’s records to the Secretary of the Army's Ad Hoc Review Board for grade determination action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests retirement at the highest grade he held, that of SSG.

2.  The applicant was first promoted to SSG while in the Regular Army; he held that rank on active duty for 11 months and 11 days.

3.  The applicant enlisted in the ARNG on 18 December 1974 as a SSG.  He held that rank in the ARNG for 2 years, 9 months, and 15 days until he was reduced for unspecified misconduct.


4.  The HRC-St. Louis should have forwarded the applicant’s case to the Army Review Boards Agency in 2004 for a grade determination by the Army Grade Determination Review Board.  That board would have considered such factors as the grade at which the misconduct was committed, and the nature and severity of the misconduct, if any.  There is no record the applicant received such consideration.

5.  The ABCMR does not know the nature of the applicant’s misconduct as his record is silent on the matter, and the applicant did not provide such information. Without such information, it is not possible to render an informed judgment.

6.  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.


															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)                                         AR20080019105



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ABCMR Record of Proceedings (cont)                                         AR20080019105



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