BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120007483 


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 the record of her deceased husband, a former service member (FSM), be corrected by restoring his rank/grade to staff sergeant (SSG)/
E-6.

2.  The applicant states the FSM passed away in 1996 from a service-connected condition (exposure to Agent Orange) and his rank should have been restored based on his completion of several tours of duty in the Republic of Vietnam and Korea.  She states the FSM suffered from post-traumatic stress disorder (PTSD) prior to his retirement which impacted his life as well as the lives of his family.

3.  The applicant provides no additional evidence.

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 FSM's record shows he initially enlisted in the Regular Army on 3 July 1957.  He served on active duty for 3 years until being released from active duty and transferred to the U.S. Army Reserve on 2 July 1960.  He again enlisted in the Regular Army on 18 August 1960 and served continuously until 31 October 1973, at which time he was honorably retired.

3.  The FSM's record shows completed an overseas tour in Germany, two overseas tours in Korea, and a combat tour in the Republic of Vietnam.  It further shows that during his active duty tenure, he earned the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Good Conduct Medal (2nd Award)
* Armed Forces Expeditionary Medal 
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* two overseas service bars
* Expert Marksmanship Qualification Badge with Rifle (M-14) Bar
* Marksman Marksmanship Qualification Badge with Rifle (M-1) Bar

4.  The FSM's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 10 March 1965 and 3 January 1977 and a special court-martial conviction on 3 May 1963.

5.  The FSM's record shows he was promoted to SSG/E-6, the highest grade he held on active duty, on 30 August 1967.  It also shows he was reduced to sergeant (SGT)/E-5, specialist four/E-4, and private (PVT)/E-1 for misconduct as a result of the imposition of NJP under Article 15 of the UCMJ on 20 January 1976, 5 February 1976, and 3 June 1977, respectively.

6.  On 31 October 1977, the FSM was honorably retired.  His DD Form 214 (Report of Separation from Active Duty) shows he held the rank/grade of PVT/
E-1 and completed a total of 20 years and 23 days of creditable active duty service at the time of his retirement.

7.  On 10 September 1987, the Army Grade Determination Review Board (AGDRB) concluded, based on a review of the FSM's entire record of military service, that he did not satisfactorily serve in the highest grade held, SSG/E-6, but that he had, in fact, satisfactorily served in the interim grade of SGT/E-5.  As a result, the board voted to advance the FSM to the grade of SGT/E-5 on the Retired List.

8.  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 2-5 contains guidance for what is considered unsatisfactory service and states, in part, 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 expressly for prejudice or cause, owing to misconduct, and/or caused by NJP pursuant to Article 15, UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the record of the FSM be corrected by restoring his grade to SSG/E-6 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the FSM held the rank of PVT/E-1 at the time of his retirement.  Although it is unfortunate that the FSM suffered from medical problems subsequent to his retirement, this alone is not a basis to support restoration of his grade.

3.  By regulation, 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, owing to misconduct, and/or caused by NJP pursuant to UCMJ Article 15.  The evidence of record confirms the FSM was reduced from the highest grade he held, SSG/E-6, as a result of Article 15 action for cause.  Therefore, his service in that grade is considered unsatisfactory.

4.  In view of the foregoing, there is an insufficient evidentiary basis to support 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 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)                                         AR20120007483



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007483



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1