IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090008556 


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/grade of staff sergeant (SSG)/E-6.

2.  The applicant states, in effect, he served his country with honor and his rank was taken for foolishness.  He claims he served half of his Army career as an SSG and he was promised he would receive his rank back after 30 years.

3.  The applicant provides a copy of his military occupational specialty (MOS) orders, a copy of his Army Good Conduct Medal (AGCM) orders as an SSG, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 that he enlisted in the Regular Army (RA) and he entered active duty on 19 April 1976.  He served in MOS 76V (Material Storage and Handling Specialist), which later converted to MOS 92Y (Automated Logistics Specialist).  His record shows that during his active duty tenure, he earned the following awards:  Army Achievement Medal (AAM), AGCM (6th Award), National Defense Service Medal, Southwest Asia Service Medal with
2 bronze service stars, Noncommissioned Officer Professional Development Ribbon with Numeral 3, Army Service Ribbon, Overseas Service Ribbon (3rd Award), and Kuwait Liberation Medal-Kuwait.

3.  On 1 June 1985, the applicant was promoted to SSG in MOS 76V.

4.  On 23 May 1994, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in his duties on or about 26 April 1984.  His punishment for this offense was a forfeiture of $439.00 pay for one month (suspended to be automatically remitted if not vacated before 19 November 1994) and 10 days of restriction.  

5.  On 13 July 1995, the applicant accepted NJP for two specifications of being derelict in the performance of his duties on or about 20 June 1995 and on or about 21 June 1995.  His punishment for these offenses was a reduction to sergeant (SGT), forfeiture of $820.00 per month for two months (suspended to be automatically remitted if not vacated before 10 January 1996), and 45 days of extra duty.  The applicant elected not to appeal the NJP action.   

6.  On 8 September 1995, the applicant was notified that the Department of the Army (DA) Calendar Year 1995 (CY95) Sergeant First Class/Advanced Noncommissioned Officer Course (ANCOC) Promotion/Selection Board, after a comprehensive review of his file, determined he was to be barred from reenlistment.  Enclosed with this notification was a list of those documents indicating areas of deficiency or weakness which contributed most to the board's decision to bar him from reenlistment.  This list included six enlisted evaluation reports issued between January 1986 and July 1994, and two NJP actions, dated 16 October 1978 and 4 December 1989.  

7.  On 30 May 1996, the applicant was honorably retired, in the rank of SGT, after completing a total of 20 years, 2 months, and 12 days of active military service.  He was subsequently transferred to the USAR Control Group (Retired).



8.  Title 10, U.S. Code, section 3961 provides the general rule for retired grade and states, in pertinent part, that unless entitled to a higher grade under some other provisions of the law, a member retires in the grade he holds on the date of his retirement.  

9.  Title 10, U.S. Code, section 3964 provides the authority to advance warrant officers and enlisted members on the Retired list after 30 years of service.  It states, in pertinent part, that each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his rank should be restored because he served his country honorably was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant was reduced to SGT for cause as a result of an NJP action on 13 July 1995.  The NJP action was accomplished in accordance with the governing law and regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the NJP action.  As a result, absent any evidence of error or injustice related to the NJP action process and/or the resultant reduction in rank, there is an insufficient evidentiary basis to support restoring his grade, or to advance him 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)                                         AR20090008556



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ABCMR Record of Proceedings (cont)                                         AR20090008556



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