BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120006072 


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 highest grade he satisfactorily held, that of sergeant first class (SFC)/E-7.

2.  He states:

	a.  On 2 October 1995, he retired in pay grade E-5 and on 26 May 2005 he was advanced on the retired list to pay grade E-6 by the Army Grade Determination Review Board. 

	b.  he previously held the pay grade of E-7 while on active duty and he has over 38 years of active service and time on the retired list.  

   c.  he understands that Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) states "generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for a prejudice or cause due to the result of the sentence of a court martial."  He believes an error or injustice has occurred for the following reasons:

		(1)  Army Regulation 15-80, paragraph 2-6 states "the next lower grade was satisfactory unless paragraph 2-5 applies."

		(2)  Army Regulation 15-80, paragraph 2-5 states "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 service in grade."

		(3)  He was awarded the Army Achievement Medal on 30 September and 31 December 1987, and Meritorious Service Medal on 3 March 1989 as an SFC/E-7.  He received an honorable discharge on 2 October 1988 as an 
SFC/E-7.  In addition, he received Noncommissioned Officer Evaluation Reports (NCOER) for the periods covering February 1989 through January 1990 and February through August 1990 which indicate his overall performance and potential as "Successful" and "Superior."

	d.  The fact that he received an honorable discharge in the grade of SFC/E-7 proves he was successful in that grade.  Award of the Meritorious Service Medal reinforces that accomplishment.  He was exceedingly successful with all endeavors as an SFC/E-7 and this is reflected by his awards and accomplishments.  

3.  He provides:

* Letter from the Army Review Boards Agency
* Honorable Discharge Certificate
* Award certificates for the Army Achievement Medal and Meritorious Service Medal
* Two DA Forms 2166-7 (NCOER) 

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 initially enlisted in the Regular Army on 29 September 1973 and he was discharged on 20 August 1974.

3.  His service record indicates he enlisted in the Regular Army again on 13 November 1974 and was discharged on 23 March 1976 for the purpose of immediate reenlistment.  

4.  He reenlisted on 24 March 1976 and continued to serve on active duty through reenlistments on 24 January 1979, 28 December 1984, and 3 October 1988.  During these periods, he was promoted to staff sergeant (SSG)/E-6 on 8 November 1980 and to SFC/E-7 on 6 June 1987.  

5.  He provided the following documents which indicate he was serving in the rank of SFC/E-7:

	a.  award certificate, dated 30 September 1987, awarding him the Army Achievement Medal for meritorious service from 11 August 1987 to 24 August 1987;

	b.  award certificate, dated 31 December 1987, awarding him the Army Achievement Medal for meritorious achievement on 9 December 1987;

	c.  Honorable Discharge Certificate, dated 2 October 1988, honorably discharging him from the U.S. Army;

	d.  award certificate, dated 3 March 1989, awarding him the Meritorious Service Medal for meritorious service from 10 March 1985 to 10 March 1989;

	e.  NCOER, for the period ending January 1990, in which the senior rater listed his overall performance as "Successful" and block 1 and potential for promotion and/or service in positions of greater responsibility as "Superior" and block 1; and

	f.  NCOER, for the period ending August 1990, in which the senior rater listed his overall performance as "Successful" and block 2 and potential for promotion and/or service in positions of greater responsibility as "Superior" and block 2.

6.  On 8 August 1991, he was convicted contrary to his plea by a special 
court-martial of committing an indecent act between on or about 23 January and 26 January 1991, communicating indecent language on or about 17 March 1991, obstruction of justice on or about 4 April 1991, and an additional charge of communicating indecent language between on or about 1 November 1989 and 30 December 1990.  He was sentenced to a reduction in rank to private/E-1 and to be discharged from the service with a bad conduct discharge.


7.  On 5 November 1991, the sentence was approved and, except for the bad conduct discharge, was executed.  The findings of guilty to the additional charge were set aside on 24 March 1994.  A sentence rehearing was ordered before another court-martial to be hereafter designated.

8.  On 19 April 1995, the sentence and findings were affirmed, but the specification alleging obstruction of justice was dismissed.  The findings of guilty on those specifications and the sentence were set aside and the additional charge and its specification were dismissed on 7 October 1994, and a rehearing on sentencing only was authorized.  On 21 July 1995, only so much of the sentence as provided for reduction to sergeant (SGT)/E-5 was approved and executed.  The applicant was credited with any portion of the punishment served from 8 August 1991 to 19 April 1995 under the sentence adjudged at the former trial of this case.  

9.  Orders published on 14 September 1995 show he was retired from active duty on 30 September 1995 and he was placed on the Retired List in the rank of SGT/E-5 on the following date.  He had completed 21 years, 9 months, and 10 days of total active military service at the time of retirement.

10.  On 25 February 2005, the Army Grade Determination Review Board convened under the provisions of Army Regulation 15-80 and denied the applicant's advancement on the retired list to the grade of E-7 because of his special court-martial action.  However, he was granted advancement on the retired list to the intermediate grade of SSG/E-6, effective his 30-year point.  

11.  On 26 May 2005, the applicant was informed the Army Grade determination Review Board found that the highest active duty grade in which he served satisfactorily for the purpose of computation of retired pay was SSG/E-6.

12.  In a letter, dated 1 March 2012, the Army Review Boards Agency informed the applicant the Army Grade Determination Review Board had already advanced him on the retired list in the intermediate grade of E-6 and there was no provision for conducting a reevaluation.  He was advised to apply to this Board.  

13.  Title 10, U.S. Code, section 3964, provides that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  


This service may consist of combined active service and service in the U.S. Army Reserve Control Group (Retired).  The Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List on behalf of the Secretary for those who have attained 30 years of service.

14.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board and other organizations delegated to make grade determinations on behalf of the Secretary of the Army.  Paragraph 2-5 states that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was the result of the sentence of a court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 29 September 1973 to 20 August 1974 and from 13 November 1974 to 30 September 1995.

2.  He was promoted to SSG on 8 November 1980 and SFC on 6 June 1987.

3.  He was reduced to SGT on 19 April 1995 as a result of conviction by a special court-martial.  Therefore, his service in the rank/pay grade of SFC/E-7 is considered not to have been satisfactory.

4.  Orders published on showing he retired from active duty on 30 September 1995 and was placed on the Retired List in the rank of SGT/E-5 on 1 October 1995.  

5.  On 26 May 2005, the Army Grade determination Review Board determined the highest active duty grade in which he served satisfactorily for the purpose of computation of retired pay was SSG/E-6.

6.  By law, retired Army personnel may be advanced in grade to the highest grade satisfactorily held while on active duty as determined by the Secretary of the Army upon completion of 30 years of service.

7.  However, since he was reduced from the rank/pay grade of SFC/E-7 to SGT/E-5 as a result of a special court-martial, advancement on the Retired List to the rank/pay grade of SFC/E-7 is not warranted.



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)                                         AR20120006072



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ABCMR Record of Proceedings (cont)                                         AR20120006072



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