IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110022125 


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 advancement on the retired list to the grade/rank of sergeant (SGT)/E-5, the highest grade he held satisfactorily on active duty pursuant to the provisions of United States Code (USC), title 10, and section 3964.

2.  He states:

* it is unreasonable the Army Grade Determination Review Board (AGDRB) determined all his active duty service above the rank/grade of private (PVT)/E-1 was unsatisfactorily served when the offenses he committed did not occur until he was in the rank/grade of staff sergeant (SSG)/E-6
* he understands what the verbiage in Army Regulation 15-80 (AGDRB and Grade Determinations), paragraph 2–5 says; however, he believes the AGDRB should advance him on the retired list to at least SGT
* Army Regulation 15-80 does not clearly stated that all grades should be considered unsatisfactorily served.
* the Grade Determination Worksheet he received reads "[the] presumption is that all the grades above E-1 were not served satisfactorily."  This quote is contradictory to the Grade Determination Worksheet notes, which indicate "The earliest offenses began in 1990"
* this is incongruent with the grade determination that everything above E-1 is not satisfactory, which blatantly disregards his satisfactory service from July 1974 to March 1990
* he believes he is being unfairly punished from the ranks/grades private (PV2)/E-2 through E-5 since he was an E-6 at the time the offenses occurred.  The AGDRB's decision to punish him by reducing him four grades before any offense occurred is unjust

3.  The applicant provides:

* Self-authored statement
* Decisional Letter, AGDRB, dated 15 July 2011
* 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.  The applicant enlisted in the Regular Army on 18 July 1974 and held the military occupational specialties 12B (Combat Engineer) and 11B (Infantryman).  He served in a variety of overseas or stateside assignments.  His last assignment of record was at Fort Leonard Wood, MO.  The highest grade he attained while serving on active duty was sergeant first class (SFC)/E-7.

3.  On 12 October 1994, he was convicted, pursuant to his pleas, by a general court-martial of two specifications of carnal knowledge, two specification of an indecent act upon a female under the age of 16, and one specification of an indecent act upon a female relative.  The Court sentenced him to confinement for 10 years and reduction to private/E-1.

4.  There is no record of the U.S. Army Court of Military Review Army affirming and approving the findings of guilty and the sentence; additionally, there is no record that he applied or appealed to the U.S. Court of Appeals for the Armed Forces.

5.  It can be concluded that the U.S. Army Court of Military Review did affirm and approve the findings and sentence because General Court-Martial Order Number 1, dated 27 January 1995, shows that the sentence was approved and executed.
6.  He was honorably retired from active duty in pay grade E-1 on 30 October 2000 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 12.  He was credited with completing 20 years, 4 months, and 15 days of net active service with 2097 days of lost time due to confinement.  

7.  On 25 July 2011, the AGDRB considered his request for advancement on the retired list.  The AGDRB denied his request because his reduction in grade was as a result of a court-martial conviction.

8.  He provided a Grade Determination Worksheet which states he was reduced to PVT/E-1 by a general court-martial.  The earliest offense began in March 1990 while he was serving in the grade of E-6.  He was sentenced to a reduction to PVT/E-1, 10 years of confinement, and then allowed to retire.  He was placed on the retired list in the grade of E-1.

9.  He provided a self authored statement, the details of which are outlined in the applicant's request, statement, and evidence portion of the record of proceedings.

10.  Army Regulation 15-80 states in:

	a.  paragraph 2–5 (Unsatisfactory service) that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when the reversion to a lower grade was expressly for prejudice or cause, owing to misconduct, caused by nonjudicial punishment pursuant to Uniform Code of Military Justice (UCMJ), Article 15, or the result of the sentence of a court-martial.  

	b.  paragraph 2–6 (Service in lower grade) that 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.

11.  USC, title 10, section 3964, states that each retired member of the Army covered 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.  This applies to warrant officers of the Army, enlisted members of the Regular Army, and Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be advanced on the retired list to the grade/rank of sergeant (SGT)/E-5, the highest grade he held satisfactorily on active duty pursuant to the provisions of Title 10, USC, section 3964.  However, this portion of the USC only states he would be entitled to be advanced when service in a higher grade was considered to be satisfactory, it does not in and of itself determine what qualifies as satisfactory service, that determination is left up to the perspective military services.

2.  It is not unreasonable that the AGDRB determined he should not be advanced on the retired list above E-1, regardless of the fact the offenses he was punished for occurred when he was a SSG.  The AGDRB properly made the determination based upon the regulatory guidance in Army Regulation 15-80, which clearly and emphatically states service in the highest or intermediate grade will be considered unsatisfactory when the reduction to a lower grade is the result of a court-martial sentence.

3.  He argues that he understands the verbiage in Army Regulation 15-80, and yet, he believes the AGDRB should have advanced him on the retired list to at least SGT because Army Regulation 15-80 does not clearly stated that all grades should be considered unsatisfactorily served; however, this is not the case.  The regulation is clear that the AGDRB must not take the grades he served in prior to his punishment into consideration because he was reduced to E-1 as a result of a court-martial sentence for the serious offenses he committed.

4.  He is not being unfairly punished by the AGDRB, nor did the AGDRB reduce him four grades.  He was reduced four grades by a general court-martial as part of his sentence.  

5.  He provided no evidence to show his grade determination was unjust, inequitable, or a result of improper actions.  He has not provided sufficient evidence or argument to show his rank/grade should be advanced on the retired list to the grade/rank of SGT/E-5.  Additionally, any redress by this Board of the finality of a court-martial conviction is prohibited by law.  Therefore, based on the foregoing, his requested relief is denied.







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)                                         AR20110022125



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ABCMR Record of Proceedings (cont)                                         AR20110022125



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