IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090009464 


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, correction to his records to show he retired in the rank and pay grade of sergeant first class (SFC), E-7, instead of the rank and pay grade of private (PV1), E-1.  

 2.  The applicant states, in effect, he believes he should have been retired in pay grade E-7.  When he returned from Saudi Arabia, he requested retirement as he had already served 22 years at the time.  He was also serving as an SFC at that time.  He received no notification of any administrative board for retention nor any reduction orders.  Upon his retirement, he was administratively reduced to 
E-1 after he received his 20 year letter and requested retirement.  His 20-Year letter addressed him as an SFC.  He was never court-martialed and received no notification of an administrative board.  He also received no contradictory information and lived in the State of Ohio until 2000.  

3.  In support of his request, the applicant provides copies of his 1971 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his 1983 and 1991 DD Forms 214 (Certificate of Release or Discharge from Active Duty), his 1988 Chronological Statement of Retirement Points, his Request for Correction of Chronological Statement of Retirement Points of United States Army Reserve (USAR) Troop Program Members forms, his separation memoranda, his 20-year letter, and his grade reduction orders.




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 records show he enlisted in the Regular Army in pay grade E-1 on 20 September 1968, for 3 years.  He completed training and was awarded military occupational specialty 91C, Practical Nurse.  He was honorably discharged on 10 February 1971 for the purpose of immediate reenlistment.  He reenlisted on 11 February 1971 for 6 years.  He was promoted to staff sergeant, pay grade E-6, on 18 October 1976.  

3.  The applicant reenlisted again on 15 August 1977 for 6 years.  He was reduced to pay grade E-5 on 8 September 1982.  He was honorably discharged from active duty in pay grade E-5 on 18 August 1983, at the expiration of his term of service.  He was transferred to the Individual Ready Reserve (USAR).  

4.  The applicant was promoted to pay grade E-6 in the USAR on 10 January 1988.

5.  The applicant submitted a copy of his Chronological Statement of Retirement Points, dated 22 September 1988, showing he was credited with 17 years, 10 months, and 27 days of qualifying service for retirement as of his retirement year ending (RYE) 19 August 1988.  He also submitted copies of two undated Requests for Correction of Chronological Statement of Retirement Points of USAR Troop Program Members forms.

6.  The applicant was promoted to pay grade E-7 in the USAR on 15 May 1990.

7.  The applicant was ordered to active duty in support of Operation Desert Shield and entered active duty on 21 November 1990.  He was honorably released from active duty on 21 June 1991 and he was transferred to a Reserve unit.  He was issued a DD Form 214 crediting him with 7 months and 1 day of net active service.  
8.  The applicant was issued a Chronological Statement of Retirement Points, dated 9 November 1992, showing he was credited with 22 years, 10 months, and 27 days qualifying years for retirement as of his RYE 15 August 1992.

9.  On 20 August 1992, the applicant was notified in writing of his commander’s intent to initiate action to separate him from the USAR for misconduct, under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel). 

10.  The applicant further submitted a copy of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) dated 14 January 1993.  The letter addressed the applicant as an SFC.

11.  On 24 April 1993, the applicant was again notified in writing of his commander’s intent to initiate action to separate him from the USAR for misconduct, under the provisions of Army Regulation 135-178, chapter 7, paragraph 7-7.  If he were separated, his service could be characterized as under other than honorable conditions.  The commander stated that the reason for the proposed action was the applicant had been convicted by a civil court for arson on 28 October 1992.  The applicant was also advised that the action would be suspended for 45 days to give him an opportunity to exercise his rights.  

12.  The notification was forwarded to the applicant at his Canton, Ohio, address by certified mail and delivered on 29 April 1993.  There is no evidence the applicant responded to the action.

13.  On an unspecified date the applicant’s commander requested he be discharged under other than honorable conditions under the provisions of Army Regulation 135-178, chapter 7.  

14.  On 2 August 1993, the appropriate separation authority issued Orders 95-28, reducing the applicant from pay grade E-7 to pay grade E-1 and discharging him from the USAR with an under other than honorable conditions discharge.  These orders were also forwarded to the applicant at a State of Ohio address.  

15.  Orders P02-901867, dated 18 February 2009, were issued placing the applicant on the Retired List, in pay grade E-1, effective 6 April 2009, on his 60th birthday.

16.  Army Regulation 135-178, in effect at the time, established the policies and procedures for the separation of enlisted Soldiers from the USAR and Army National Guard.  Paragraph 7-7 of that regulation provided for the separation of Soldiers initially convicted by civil authorities.  The immediate commander would consider whether to initiate the discharge action against the Soldier.  The service of a Soldier discharged for that reason would normally be characterized as under other than honorable conditions.  

17.  Army Regulation 135-178, paragraph 7-20, specified that reduction in grade on approval of discharge under other than honorable conditions would be as specified in paragraph 2-20.  Paragraph 2-20 specified that when a Soldier was to be discharged under other than honorable conditions, the convening authority would direct the immediate reduction to pay grade E-1 under this regulation. 

18.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), in effect at the time, specified in paragraph 2-11(2) that if a Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade would be that which the member held on the date before retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant had been promoted to the rank and pay grade of SFC/E-7 in the USAR on 15 May 1990.  On 24 April 1993, the applicant’s commander initiated action to separate him from the USAR by reason of his conviction by civil authorities on 28 October 1992.  On 2 August 1993, the appropriate convening authority reduced the applicant to pay grade E-1 and discharged him from the USAR, in accordance with Army Regulation 135-178, chapter 7, with an under other than honorable conditions discharge.  

2.  The applicant's contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  Pertinent regulations specified that all USAR Soldiers discharged for conviction by civil authorities with a character of service under other than honorable conditions would be reduced to pay grade E-1 prior to discharge.  The evidence of record confirms the applicant held the rank and pay grade of PV1/E-1 on the date of his discharge from the USAR.  The applicant was placed on the Retired List in the grade held on the date before retirement.  He has provided no evidence showing he satisfactorily held the grade of E-7 after his reduction and prior to his discharge from the USAR or at the time of his transfer to the Retired List.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090009464



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ABCMR Record of Proceedings (cont)                                         AR20090009464



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