IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120005406 


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 correction of his records to show he was advanced on the retired list to pay grade E-6.

2.  The applicant states, in effect, he defers to his counsel.

3.  The applicant provides no additional documentary evidence in support of his application.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he was advanced on the retired list to pay grade E-6.

2.  Counsel states the applicant served honorably in pay grade E-6, but was retired in grade E-5.

   a.  The applicant was promoted to staff sergeant (SSG)/pay grade E-6 with a date of rank (DOR) of 10 December 1974 and he was paid in grade E-6.

   b.  His 25 August 1977 DD Form 214 (Report of Separation from Active Duty) shows he was honorably discharged in the rank of SSG (E-6).  So, despite any later reduction, the applicant did, in fact, serve honorably in grade E-6.

   c.  The applicant's retired grade was due not only to various disciplinary actions, but also because he was denied the opportunity to appear before an E-6 promotion board in 1980 while he was stationed in Germany.

   d.  On 5 October 2004, the applicant submitted an application to the Army Review Boards Agency, Army Grade Determination Review Board (AGDRB), requesting advancement on the retired list to grade E-6.  On 2 March 2005, the AGDRB denied his request.

   e.  Counsel concludes that allowing the applicant to be advanced on the retired list to the highest grade in which he served while on active duty would be fair and just.

   f.  Counsel cites Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), chapter 3-2a (Title 10, U.S. Code, section 3964), that "entitles certain retired members of the Army who are retired with fewer than 30 years of active service, when such member's active service plus service on the retired list, totals 30 years, to be advanced on the retired list to the highest grade served on active duty satisfactorily."

3.  Counsel provides, in support of the application, copies of the applicant's letter to the AGDRB, dated 5 October 2004; AGDRB letter, dated 2 March 2005; and his 25 August 1977 DD Form 214.

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 was inducted into the Army on 9 January 1961.  He enlisted in the Regular Army (RA) on 17 March 1961 and served continuously on active duty through 31 July 1981.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions):

* Specialist Five (SP5), 7 September 1971
* SSG (E-6), 10 December 1974
* SP5 (E-5), 5 October 1978

4.  A DD Form 214 shows the applicant entered active duty this period on
30 March 1973 and he was honorably discharged on 25 August 1977.  He completed 4 years, 4 months, and 25 days of net active service this period.
It also shows in:

* item 6a (Grade, Rate or Rank) - "SSG"
* item 6b (Pay Grade) - "E-6"
* item 7 (DOR) - "74 12 10" (10 December 1974)

5.  The applicant reenlisted in the RA on 26 August 1977.

6.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice) shows the applicant received nonjudicial punishment (NJP), on 5 October 1978, for dishonorably failing to pay a debt during the period 9 June to 13 September 1978 and for failing to go at the time prescribed to his appointed place of duty on 11 September 1978.  His punishment was detention of $300.00 pay per month for three months and reduction to SP5 (E-5).

7.  A DA Form 2339 (Application for Voluntary Retirement) shows the applicant requested voluntary retirement from active duty effective 31 July 1981 and placement on the retired list effective 1 August 1981.  It also shows in:

	a.  item 5 (Current Grade, Pay Grade, DOR and MOS (Military Occupational Specialty)):  "SP5, E-5, 781005 (5 October 1978), 71L2O (Administrative Specialist)"; and

	b.  item 6 (Highest Grade Served on Active Duty and Branch of Service): "SSG E6 US Army."

	c.  The applicant placed his signature on the document on 12 January 1981.

8.  Orders Number 110-7 issued by Headquarters, Fort Huachuca, Arizona, on
5 June 1981, released the applicant from active duty in the rank (grade) of SP5 (E-5) on 31 July 1981 and placed him on the retired list in the same rank (grade) of SP5 (E-5) effective 1 August 1981.
9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 31 July 1981 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 12, based on completion of required service for retirement and he was transferred to the U.S. Army Reserve Control Group (Retired).  He completed 20 years, 6 months, and 7 days of total active service.  It also shows in:

* item 4a (Grade, Rate or Rank) - "SP5"
* item 4b (Pay Grade) - "E-5"
* item 12 (Record of Service), block h (Effective Date of Pay Grade) -
"78 10 05" (5 October 1978)

10.  The applicant's military personnel records do not contain any evidence that shows he was promoted to SSG (E-6) subsequent to 5 October 1978.

11.  On 5 October 2004, the applicant submitted an application to the AGDRB. He stated that he was denied the opportunity to appear before an E-6 promotion board in 1980 while he was stationed in Germany.  He acknowledged having had financial problems, turning to alcohol because of his problems, and going absent without leave (AWOL), which resulted in his reduction in grade.  He asserted, "I was not given a chance to show that I was a changed Soldier."

12.  On 2 March 2005, the AGDRB notified the applicant that after a thorough review of his Official Military Personnel File, the Board determined to deny advancement on the retired list to the grade of E-6 because of his Article 15 while in that grade for failure to pay a just debt and failure to repair (FTR).  The Board took into consideration his awards and achievements, several Article 15 actions for FTR and AWOL, and a summary court-martial conviction for AWOL.

13.  Army Regulation 635-200, in effect at the time the applicant retired from active duty, provided the authority for the separation of Soldiers from the Active Army.  Chapter 12 (Retirement for Length of Service), paragraph 12-3 (General Provisions of Laws Governing Retirement), provided that retirement will be in the regular or Reserve grade the member holds on the date of retirement in accordance with Title 10, U.S. Code, section 3961.

14.  Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the retired list.  It states that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the RA or Reserve grade that he or she holds on the date of retirement.

15.  Title 10, U.S. Code, section 3964, provides that each retired member of the Army who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he or she served on active duty satisfactorily, as determined by the Secretary of the Army.

16.  Army Regulation 15-18 governs the actions and composition of the AGDRB. Chapter 2 (General) provides in:

   a.  paragraph 2–4 (Grade determination considerations) that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay.  Although a lower grade determination may affect an individual adversely, it is not punitive.  The AGDRB will consider each case on its own merits.  Generally, determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following:

    	(1)  medical reasons, which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance;

    	(2)  compassionate circumstances; and

    	(3)  length of time in grade;

   b.  paragraph 2–5 (Unsatisfactory service) provides that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when:

    	(1)  the highest grade was a result of a terminal leave promotion; or

    	(2)  reversion to a lower grade was:

* expressly for prejudice or cause
* owing to misconduct
* caused by NJP pursuant to UCMJ, Article 15
* the result of the sentence of a court-martial



DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's records should be corrected to show he was advanced on the retired list to pay grade E-6.

2.  Records show the applicant was promoted to SSG (E-6) on 10 December 1974 and that he received a DD Form 214 documenting his honorable service in that grade during the period from 30 March 1973 through 25 August 1977.

3.  The applicant reenlisted in the RA on 26 August 1977.  He received NJP for failure to pay a just debt and failure to repair.  As a result, he was reduced to SP5 (E-5) effective 5 October 1978.

4.  Records confirm the applicant held the grade of E-5 when he was honorably retired from active duty on 31 July 1981 and that he was placed on the retired list in that grade.  Thus, the retired grade in which the applicant was placed on the Retired List is correct.

5. On 2 March 2005, the AGDRB denied the applicant's advancement on the retired list to the grade of E-6 because of his Article 15 while in that grade for failure to pay a just debt and FTR.  

6.  The evidence of record shows that service in the highest grade normally will be considered to have been unsatisfactory when reversion to a lower grade was owing to misconduct or caused by NJP pursuant to UCMJ, Article 15.  As such, the evidence of record confirms the applicant's service in grade E-6 was unsatisfactory and he is not entitled to be advanced on the retired list.

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)                                         AR20120005406



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ABCMR Record of Proceedings (cont)                                         AR20120005406



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