IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100010900 


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:

The applicant defers requests and statement to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, restoration of the applicant’s rank/grade of master sergeant (MSG)/E-8 and advancement on the retired list in the retired rank/grade of MSG/E-8.

2.  Counsel states, in effect, in December 2008 the Army Grade Determination and Review Board (AGDRB) denied the applicant’s petition for advancement of his retired grade from staff sergeant (SSG)/E-6 to MSG/E-8.  The applicant has paid the price for his misconduct that led to his court-martial conviction.  The applicant contends the money he has lost by retiring in the pay grade of E-6 and not E-8 from 2004 until now has served its purpose.  He had been punished enough.  In denying the applicant’s initial request, the AGDRB did not provide any rationale for its decision other than note he was sentenced to reduction to private (PV1)/E-1 and to be discharged with a bad conduct discharge (BCD), yet allowed to retire in the grade of E-6.  This is merely a restatement of facts and did not provide a rationale for denying his request.

3.  Counsel also stated the crimes the applicant was convicted of, while serious, did not deserve the continuing punishment he was receiving.  It is important to note the applicant made full restitution prior to his court-martial and cooperated 

fully with investigators.  The Army lost no money as a result of his misconduct, yet it continues to punish him financially by the reduction in his retired pay grade. The applicant served 26 years in the Army and served honorably and with esteem.  It was only during a short period of time the misconduct for which he was convicted occurred.  His punishment has been served and he should be allowed to retire at the grade he attained.

4.  Counsel provides copies of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty); retirement orders and certificate of retirement; ten certificates of appreciation, training, attendance, and achievement; four character reference letters pertaining to the applicant; the applicant’s biographical sketch; and his letter to the AGDRB, their reply, and Grade Determination Worksheet.

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.  His military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 21 April 1977.  He was discharged from the USAR DEP on 18 July 1977 and he enlisted in the Regular Army (RA) in pay grade of E-1 on 19 July 1977.  He completed training and he was awarded military occupational specialty 11B (infantryman).  He was subsequently awarded MOS 76J (medical supply specialist).  He was promoted to MSG/E-8 on 1 June 1996 in MOS 91J (medical logistics specialist).

3.  On 4 September 2003, he was convicted pursuant to his pleas by a general court-martial of the following charges:

* one specification of conspiracy to commit larceny of U.S. Government property in excess of $500.00 between 1 January 2002 and 31 March 2002
* one specification of making a false statement to a U.S. Army Criminal Investigation Command (USACIDC), (also known as CID) special agent on or about 11 March 2002
* three specifications of stealing U.S. Government property of a value in excess of $500.00 between 1 January 2000 and 31 December 2000, 1 January 2001 and 31 December 2001, and 1 January 2002 and
31 March 2002
* one specification of wrongfully impeding an investigation into improper and unauthorized uses of an International Merchants Purchase Authorization Card (IMPAC) between 1 January 2002 and 31 March 2002
* one specification of wrongfully devising and participating in a mail fraud scheme to defraud and to obtain money in excess of $500.00 between
1 September 2001 and 31 October 2001
* one specification of wrongfully devising and participating in a wire fraud scheme to defraud and to obtain money in excess of $500.00 between and 1 September 2001 and 30 November 2001

4.  He pled guilty and was found guilty of all charges and specifications.  He was sentenced to reduction to PV1/E-1, confinement for 10 months, forfeiture of all pay and allowances, payment to the United States of a fine in the amount of $6,418.99 (if fine not paid, then to be confined for an additional 2 months), and to be discharged from the Army with a Bad Conduct Discharge (BCD).  The sentence was adjudged on 4 September 2003.

5.  On 21 January 2004, the convening authority approved only so much of the sentence as provided for reduction to SSG/E-6, confinement for 6 months, forfeiture of all pay, and payment to the United States of a fine in the amount of $6,418.99.  With the exception of the BCD, the sentence was ordered to be duly executed.

6.  He was placed in military confined on 4 September 2003 and he was released on 3 February 2004.

7.  He was honorably released from active duty in pay grade E-6 on 31 March 2004, for retirement, and credited with 26 years, 3 months, and 9 days of net active service.  He was placed on the Retired List in pay grade E-6 on 1 April 2004.  His DD Form 214 erroneously shows his rank/grade as MSG/E-8 with a date of rank of 1 June 1996.

8.  On 23 December 2008, the AGDRB advised his counsel that Army Regulation 15-80 (AGDRB and Grade Determinations), paragraph 3-5, provides that service

in the highest grade or an intermediate grade would normally be considered to be unsatisfactory when reversion to a lower grade was the result of a court-martial sentence or punishment under Article 15, Uniform Code of Military Justice (UCMJ).  The AGDRB determined the applicant was not entitled to advancement on the Retired List in pay grade E-8 because of his general court-marital conviction.  The AGDRB noted he was initially sentenced to reduction to pay grade E-1 and given a BCD; however, he was only reduced to E-6 and allowed to retire.

9.  Counsel submits copies of ten certificates of appreciation and achievement the applicant received for his service in the Army and as an educator, along with the applicant’s biographical sketch.  Counsel also submitted copies of five character reference letters attesting to the applicant’s valuable work as a Spanish teacher.  None of these statements have a statement recommending his advancement on the Retired List in pay grade E-8.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12, sets forth the basic authority for the separation of enlisted personnel because of length of service.  It states, in pertinent part, that retirement normally will be in the regular grade the Soldier holds on the date of retirement, as prescribed in Title 10, U.S. Code, section 3961, which provides the legal authority for retirement grades.  Paragraph 12-3 specifies the AGDRB, in accordance with Army Regulation 15-80, will make a determination of the highest grade a Soldier satisfactorily served in.

11.  Title 10, U.S. Code, Section 3961 provides that each retired member of the Army, unless entitled to a higher grade under some other provision of law, retires in the regular grade that he/she holds on the date of his/her retirement.

12.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the AGDRB.  This regulation provides, in pertinent part, guidance processing grade determinations and it states that for enlisted cases, the AGDRB will make final determinations on behalf of the Secretary of the Army.  It will determine the highest grade in which a soldier has served satisfactorily for the purpose of advancement on the Retired List.  It further states that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay, and each case will be considered on its own merits. The standard for grade determinations is not whether the individual has been sufficiently punished.

13.  Army Regulation 15-80, in pertinent part, also contains guidance on what service will not be considered satisfactory for grade determination purposes.  It 

states, in pertinent part, that generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by nonjudicial punishment (NJP), or the result of the sentence of a court-martial. 

14.  Paragraph 2-5 of Army Regulation 15-80 states that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when: a) the highest grade was a result of a terminal leave promotion;  b) reversion to a lower grade was expressly for prejudice or cause, owing to misconduct, caused by nonjudicial punishment pursuant to UCMJ, Article 15, and the result of the sentence of a court-martial; and c) there is sufficient unfavorable information to establish that the soldier's service in the grade in question was unsatisfactory.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade.  However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. 

15.  Title 10, U.S. Code, section 3964, provides the legal authority for the advancement on the Retired List to a higher grade after 30 years of service for warrant officers and enlisted members.  It states, in pertinent part, that each retired enlisted 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/she served on active duty satisfactorily, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant was promoted to MSG/E-8 on
1 June 1996.  In September 2003, he was convicted by a general court-martial of making unauthorized purchases, making a false statement to a CID special agent, stealing property of the U.S. Government, impeding an investigation, and participating in a mail/wire fraud scheme.  He was sentenced to reduction to pay grade E-1, forfeiture, confinement, and to be discharged with a BCD.  On
21 January 2004, the appropriate convening authority reduced him to pay grade E-6 and ordered his sentence, with the exception of the BCD, be duly executed.  He was honorably retired in the rank/grade SSG/E-6 for sufficient service for retirement and transferred to the Retired List in the same rank/grade.

2.  Counsel’s contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  Neither counsel nor 

the applicant have provided evidence to show that his reduction from MSG/E-8 and placement on the Retired List as an SSG/E-6 were improper or inequitable or should now be changed.  Pertinent regulations specified that service in the highest grade or an intermediate grade would normally be considered to be unsatisfactory when reversion to a lower grade was the result of a court-martial sentence.

3.  The evidence of record confirms he held the rank/grade SSG/E-6 on the date of his retirement.  The applicant was properly placed on the Retired List in that same rank/grade.  Neither counsel nor the applicant have provided evidence showing he satisfactorily held the grade of E-8 after his reduction and prior to his date of retirement and placement on the Retired List.

4.  It appears leniency was granted to the applicant, notwithstanding his offenses, as he was honorably retired in the rank/grade of SSG/E-6 vice reduction to PV1/E-1 and issuance of a BCD.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief and there is no error in the applicant's records.  He was properly retired in the appropriate rank/grade of SSG/E-6.

5.  Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause as the result of the sentence of a court-martial.  Therefore, he is also not entitled to advancement on the retired list to sergeant first class (SFC)/E-7.

6.  In order to justify correction of a military record he must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  Counsel and the applicant have failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting 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)                                         AR20100010900



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ABCMR Record of Proceedings (cont)                                         AR20100010900



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