IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009

		DOCKET NUMBER:  AR20090004087 


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, restoration of his rank to staff sergeant (SSG).  

2.  The applicant states, in effect, he was reduced prior to retirement and is now requesting restoration of his rank.  He states he was told his rank would be amended at retirement.  

3.  The applicant provides a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative); and a Department of Michigan Veterans Affairs and Rehabilitation Office Letter, dated 6 February 2009, in support of his application.

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 he enlisted in the Regular Army and entered active duty on 16 October 1962.  His DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Promotions and Reductions), that he was promoted to SSG on 26 September 1968, and that this is the highest rank/grade he attained while serving on active duty.  It further shows he was reduced to private/(PV1)/E-1 on 18 July 1985, and that this is the rank he held at the time of his retirement.  

3.  On 22 May 1985, a general court-martial (GCM) found the applicant guilty, contrary to his pleas, of violating Articles 81 and 112 of the Uniform Code of Military Justice as follows:  Article 81, by conspiring to commit larceny of military property valued in excess of $100.00; and Article 112, by stealing military property valued in excess of $100.00.  The resultant sentence was a reduction to PV1, a forfeiture of $5,000.00, and confinement for 1 year.  

4.  On 31 January 1986, while serving in the rank of PV1, the applicant completed a DA Form 2339 (Application for Voluntary Retirement) in which he requested retirement in the rank of PV1 on 1 March 1986.  

5.  On 28 February 1986, the applicant was honorably released from active duty for the purpose of voluntary retirement.  The DD Form 214 he was issued at the time confirms he held the rank of PV1 on the date of his REFRAD for retirement. It also verifies that he completed a total of 22 years, 1 month, and 15 days of creditable active military service and that he accrued 289 days of time lost due to being in confinement.   

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states, in pertinent part, that the 
DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time 
of release from active duty, retirement or discharge.  The regulation also contains guidelines for the preparation of the DD Form 214.  It states, in pertinent part, that the rank and pay grade entry in Item 4a and Item 4b will be the active duty grade or rank and pay grade the member holds at the time of separation.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers by reason of 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 U. S. Code, section 3961 (10 USC 3961).  There are no provisions for automatic reinstatement of rank upon retirement.  
8.  Paragraph 12-6 (Advancement on the Retired List) of the same regulation 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 Title 10 of the U. S. Code, section 3964 (10 USC 3964). 

9.  Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determination) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations.  Paragraph 2-5 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his rank should be restored because he was told his rank would be amended at retirement has been carefully considered.  However, there is insufficient evidence to support his claim.  The governing regulations stipulate that a member will be retired in the rank they hold on active duty on the date they are released for retirement.  There are no regulatory provisions that provide for an automatic amendment of a rank at retirement.  

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and reduction were effected in accordance with applicable law and regulations, and the reduction was warranted based on the misconduct he committed. 

3.  The evidence of record further confirms that on 28 February 1986, 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.  Therefore, he was properly placed on the Retired List as a PV1 in accordance with the applicable law and regulation.

4.  Further, although not formally requested by the applicant, his application was also considered as a request for advancement on the Retired List.  By regulation, members may be advanced on the Retired List to the highest grade in which they satisfactorily served on active duty as determined by the Secretary of the Army.  


5.  However, the regulation governing grade and satisfactory service determinations stipulates 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.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that his service was not sufficiently meritorious to support his advancement on the Retired List given the seriousness of the offenses that resulted in his court martial conviction.  Therefore, there is also an insufficient evidentiary basis to support his advancement to a higher grade on the Retired List.  

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.




      _______ _   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)                                         AR20090004087



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ABCMR Record of Proceedings (cont)                                         AR20090004087


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