BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090006454 


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 his highest rank and grade he held of staff sergeant/E-6 (SSG).

2.  The applicant states, in effect, that he desires to be advanced on the Retired List now that he has completed a total of 30 years service.  He also indicates that he proved to be an outstanding Soldier following his incident in 1989 and attended Alcoholics Anonymous meetings to improve his standing as a noncommissioned officer (NCO).  The applicant lists his accomplishments and indicates that he was told he would be advanced on the Retired List to his highest grade satisfactorily held for a minimum of 3 years upon completing 30 years of total service on the Retired List.

3.  The applicant provides the following documents in support of his application:  self-authored statement, Hadi Clinic Medical Report, DD Form 214 (Certificate of Release or Discharge from Active Duty), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) document extract, and a copy of his resume.

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 military record shows that after having prior military service, he enlisted in the Regular Army and entered active duty on 28 May 1980.  He was trained in, awarded, and served in military occupational specialties (MOSs) 77F (Petroleum Supply Specialist), 92Y (Supply Specialist), 71L (Administrative Specialist), and 76C (Equipment Records and Parts Specialist).

3.  The applicant's Official Military Personnel File includes a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which shows he accepted non-judicial punishment (NJP) on 30 July 1980 for having marijuana in his possession.  His punishment included a reduction from specialist four/E-4 (SP4/E-4) to private first class (PFC/E-3) and forfeiture of $175.00 pay per month for one month.

4.  The applicant was promoted to the rank of SSG on 12 September 1986.

5.  On 23 August 1989, the applicant accepted NJP for operating a vehicle while drunk on or about 7 August 1989.  The resulting punishment was forfeiture of $599.00 pay for one month, reduction to sergeant/E-5 (SGT), and 45 days extra duty.

6.  On 1 April 1990, Orders Number 8-22 awarded him the Army Achievement Medal for the period 4 January 1990 to 28 January 1990.

7.  On 10 September 1992, Permanent Orders 254-1619, Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, awarded the applicant the Good Conduct Medal (fifth award) for the period 28 May 1989 to 27 May 1992.

8.  On 17 November 1992, Permanent Order 68-2 awarded the applicant the  Army Commendation Medal for meritorious service for the period 21 May 1987 to 
31 May 1997.

9.  On 18 February 1997, Permanent Order Number 42-06, 5th Personnel Support Battalion, Fort Polk, LA, awarded the applicant the Meritorious Service Medal for exceptionally meritorious service for the period 21 May 1987 to 31 May 1997.


10.  On 30 July 1996, Order Number 212-0016, published by Department of the Army, 5th Personnel Service Battalion, directed the applicant’s release from active duty (REFRAD) on 31 May 1997, and his placement on the Retired List the following day, 1 June 1997, in the rank and pay grade of SGT/E-5.  The DD Form 214 issued to the applicant on the date of his separation, 31 May 1997, confirms that he held the rank and pay grade of SGT/E-5 on the date of REFRAD.

11.  The applicant's record contains his Noncommissioned Officer Evaluation Reports (NCOERs) from the period June 1989 to October 1996.  All of his NCOERs show that he received successful ratings with exception of the NCOER for the period November 1993 to October 1994, that rated his performance as marginal.

12.  On 7 August 2008, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request for advancement on the Retired List.  The AGDRB cited Army Regulation 15-80, paragraph 2-5, which states, in pertinent part, that service in the highest or intermediate grade held will normally be considered as unsatisfactory when reversion to a lower grade is the result of court-martial or  punishment under the UCMJ and determined the applicant should not be advanced to the rank and pay grade of SSG/E-6.

13. The applicant submitted copies of his medical reports which show that he was seen at the Hadi Clinic in Kuwait in December 2008.

14.  The applicant submitted a copy of his resume which shows his employment history.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states, in pertinent part, that retirement will be in the Regular Army or Reserve grade the Soldier holds on the date of retirement, as prescribed in Title 10 of the U.S. Code, section 3961, which provides the legal authority for retirement grades.  

16.  Paragraph 12-6 (Advancement on the Retired List) of Army Regulation 
635-200 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). 


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should be advanced on the Retired List to his highest grade held of SSG/E-6 because of his excellent service subsequent to the incident that resulted in his reduction to the lower grade which includes him being awarded the Meritorious Service Medal, the Army Commendation Medal, and the 5th award of the Good Conduct Medal for the period 28 May 1989 to 
27 May 1992, only one NCOER with marginal performance for the period November 1993 to October 1994, and his post service conduct which includes a 10-year period of employment as a federal employee and a government contractor in a forward deployed theater of operations as evidenced by his medical reports, has been carefully considered.

2.  The AGRDB found that the applicant did not satisfactorily serve in the rank and pay grade of SSG/E-6 because he was reduced from that rank and pay grade due to his own misconduct, as evidenced by his Article 15 for driving while drunk.  

3.  The applicant compromised the special trust and confidence placed in him as an NCO.  His misconduct was found to be inconsistent with the high standards of professionalism expected of an NCO and rendered his service in the rank and pay grade of SSG/E-6 unsatisfactory.  His good subsequent service was performed while an E-5.  Based on his overall record of service, the applicant’s retired rank and pay grade of SGT/E-5 is the highest in which he satisfactorily served while on active duty; and it would be appropriate that he retain that rank and pay grade on the Retired List. 

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)                                         AR20090006454





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ABCMR Record of Proceedings (cont)                                         AR20090006454



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