IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100008555 


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, that he be retired in the rank of staff sergeant (SSG)/pay grade E-6.

2.  The applicant states he was previously promoted to the rank of SSG in 1971, while serving on active duty in Vietnam.  He contends that upon his retirement, his records were not properly adjusted to reflect the highest grade he held.

3.  The applicant provides the following:

* An excerpt of his medical records
* A letter of commendation, Headquarters Battery, 62nd Air Defense Artillery
* A copy of a DA Form 2627 (Summarized Record of Proceedings under Article 15, UCMJ)
* A copy of his DA Form 20 (Enlisted Qualification Record)

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 service records show he enlisted in the Regular Army on 14 July 1958.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty 16D (Hawk Missile Crewman).  After several reenlistments and promotions, he attained the rank of SSG on 24 March 1967.

3.  His records indicate, in pertinent part, the following promotions and reductions and the effective dates:

Rank/Pay Grade
Effective Date
Staff Sergeant/E-6
24 March 1967
Sergeant/E-5
5 February 1969
Staff Sergeant/E-6
13 November 1971
Sergeant/E-5
29 April 1977
Specialist/E-4
27 September 1977
4.  On 14 September 1977 contrary to his plea, the applicant was convicted by a special court-martial of one specification in violation of Article 132 of the Uniform Code of Military Justice (UCMJ) for making a false and fraudulent claim against the government.  His adjudged sentence was to forfeit $249.00 pay per month for one month, to be confined at hard labor for two months, and to be discharged from the service with a Bad Conduct Discharge.  

5.  A copy of a DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on 23 September 1977.  This form shows he was administered nonjudicial punishment (NJP) on five different occasions. 

6.  On 27 September 1977, the portions of the sentence in excess of a forfeiture of $100.00 for 1 month and reduction to E-4 were suspended for 9 months.  It appears the convening authority ultimately remitted the remainder of the adjudged sentence.  On 30 December 1977, the applicant was granted a 
7 month extension of his enlistment period for the purpose of reaching retirement eligibility.  

7.  The applicant's military service records contain a copy of Headquarters, U.S. Army Defense Center and Fort Bliss, Orders 133-86, dated 6 July 1978.  This document shows, in pertinent part, the applicant was retired from the Army, effective 31 July 1978, and placed on the retired list as a Specialist Four 
(SP4)/E-4 on 1 August 1978.  
8.  A copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 31 July 1978, shows was he honorably retired in the rank/pay grade of SP4/E-4.  He had completed a total of 20 years and 8 days total service for pay. 

9.  The applicant's records contain a copy of a Memorandum, Army Review Boards Agency, dated 17 February 2004, subject:  30-Year Grade Determination (Title 10, United States Code, Section 3964).  This document shows, in pertinent part, that the Army Grade Determination Review Board (AGDRB) reviewed the applicant's request for advancement to SSG/E-6 on the retired list.  The board determined the highest grade held in which he served satisfactorily for the purpose of computation of retired pay was SGT/E-5. 

10.  Title 10, United States Code, Section 3964 (Higher grade after 30 years of service:  warrant officers and enlisted members), provides, in pertinent part, that each retired member of the Army 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, as determined by the Secretary of the Army.  This section applies to Army warrant officers; regular enlisted members; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty.

11.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  Paragraph 2-6 (Service in Lower Grade) provides, if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2-5 applies.  Paragraph 2-5 (Unsatisfactory Service) of this Army regulation provides, in pertinent part, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his rank be changed to SSG on the retired list was carefully considered.  However, it was not found to be supported by the evidence.


2.  The evidence of record shows that the applicant was convicted by a special court-martial on 14 September 1977.  He was sentenced to forfeit $249.00 pay per month for one month, to be confined at hard labor for two months, and to be discharged from the service with a Bad Conduct Discharge.  The special court-martial convening authority approved only that part of the sentence extending to forfeiture of $100.00 pay for one month and reduction to the rank/pay grade SP4/E-4.  The remaining portion of the sentence was suspended for 9 months.  The applicant was barred from reenlistment, but was granted an extension of 
7 months in order to qualify for retirement.  

3.  The Secretary of the Army or his designee determines the appropriate Army retirement grade for each Soldier.  In the applicant's specific case, the AGDRB in fact decided that SGT/E-5 was the appropriate retirement rank and grade for him.

4.  Based upon the applicant’s record of misconduct after he was promoted to SSG/E-6, it does not appear that he met the requirement to have satisfactorily served on active duty in the rank of SSG.  In fact, the convening authority was more than generous when he suspended the BCD and allowed the applicant to reach retirement.  The applicant has not provided sufficient evidence to show he is entitled to be placed on the retired list as an SSG/E-6.  Therefore, there is no basis to grant the requested relief. 

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)                                         AR20100008555





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ABCMR Record of Proceedings (cont)                                         AR20100008555



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