IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120011739 


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 rank/grade of sergeant first class (SFC)/E-7. 

2.  He states he understands that Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) states service in a grade will not be considered to have been satisfactory when reversion to a lower grade was for prejudice or cause due to misconduct, caused by nonjudicial punishment, or the result of court-martial.  He believes he should be advanced to SFC/E-7 on the retired list because:

* he apologizes
* he did the best he could to serve our country and the U.S. Army
* he worked very hard to help the Soldiers and civilians in his units and duty assignments
* he is not asking for any back pay

3.  He states he works at the Department of Veterans Affairs Medical Center in St. Louis, MO, where he proudly serves veterans on a daily basis.  As a reenlistment noncommissioned officer (NCO), he reenlisted quite a few Soldiers and always told them how great a career the Army offered.  His NCO Evaluation Reports were "successful" in all areas and his raters' and senior raters' comments were always positive.  He also receives good ratings in his civilian employment.  He volunteers with a sheriff's department and has a part-time job as a security officer at a medical center.

4.  He provides documents he has identified in a list attached to his application.

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.  With prior service in the U.S. Navy, U.S. Marine Corps, and Army National Guard, on 16 May 1984, the applicant entered active duty as a member of the U.S. Army Reserve (USAR).  His record shows he served in military occupational specialty (MOS) 75H (Personnel Specialist) and 92Y (Unit Supply Specialist) and held secondary MOS 79V (Retention NCO).

3.  His record shows he was promoted to staff sergeant (SSG)/E-6 effective 1 November 1987 and to SFC/E-7 effective 1 August 1993.  

4.  His record includes eight NCO Evaluation Reports for his service as an SFC/E-7 during rating periods from August 1993 through August 2001.  He was rated as "fully capable" on seven of the reports, and he was rated as "among the best" on one report.  The reports show his senior raters rated his overall performance as successful and indicated he had superior potential for promotion and/or service in positions of greater responsibility.

5.  His NCO Evaluation Report for the period September 2001 through August 2002 shows he was rated as "marginal."  His senior rater rated his overall performance as poor and indicated he had poor potential for promotion and/or service in positions of greater responsibility.

6.  An entry in his transaction history in the Integrated Web Services shows a staff member of the U.S. Army Human Resources Command (HRC) contacted him by telephone on 17 May 2002 to discuss his separation documents.  The HRC staff member entered the following comments documenting his contact with the applicant:

	"Contacted [the applicant] telephonically to discuss his separation documents.  Advised soldier I had located his 214's from Navy; 214's from MC, NGB forms from TXARNG; CAARNG; ORARNG; MOARNG; MOAIRNG.  Asked the soldier what unit he was in during Vietnam because soldier's [DA Form 2-1 (Personnel Qualification Record)] reflects he was in Vietnam from Oct 68 - Oct 69.  Soldier immediately responded he was never in Vietnam and became defensive without my asking about the entries on his 2-1.  Also asked the soldier if he was never in Vietnam why was he wearing the [Combat Infantryman Badge (CIB)] and [Vietnam Campaign Medal] and [Vietnam Service Medal] on a photo he had taken on 18 March 1986.  Soldiers [sic] excuse was he was told to wear them on his uniform because they were on his DA Form 2-1.  The reason I questioned his Vietnam service was because it is very unlikely a soldier who was in the Navy from 68 Jul thru 70 Jan and discharged under honorable conditions [would be] entitled to be wearing the CIB.  His 214 for the Navy time does not reflect any foreign and or sea duty.  This soldier is a 75H40 and he claims he has no idea how those entries got on his 2-1.  He claims he has lined through those entries no less than 5 times and yet the 2-1 currently prepared is dated 22 August 1984 and contains his signature."

7.  His NCO Evaluation Reports covering rating periods from September 2002 through September 2003 show he was rated as "fully capable."  His senior rater during these periods rated his overall performance as successful and indicated he had superior potential for promotion and/or service in positions of greater responsibility.  

8.  On 14 January 2004, Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, issued Special Court-Martial Order Number 3.  The order shows the applicant pleaded guilty and was found guilty of two charges:

* on 15 October 1998, with intent to deceive, signing an official record
* on 17 September 1998, unauthorized wearing of badge and awards

9.  On 18 September 2003, he was sentenced to be reduced to sergeant (SGT)/E-5.  Only so much of the sentence as provided for reduction to staff sergeant/E-6 was approved and ordered executed.  

10.  On 31 October 2003, he was retired in the rank/grade of SGT/E-5.  The DD Form 214 issued at that time shows he completed 23 years, 4 months, and 16 days of active duty service.

11.  On 15 June 2006, in ABCMR Docket Number AR20050013950, the Board considered the applicant's request for correction of his record to show he retired in pay grade E-6 based on his approved court-martial sentence.  The Board recommended correction of his record to show he retired and was placed on the retired list in pay grade E-6.  The recommendation was approved on 10 July 2006.  

12.  He provides documents showing, in part, he:

* is a member of several fraternal organizations
* has been an officer in two fraternal organizations
* has been employed as a security officer
* is a volunteer with a sheriff's office
* completed U.S. Army Equal Opportunity Representative Training in August 1997
* was awarded 6th Degree Black Belt by a martial arts academy
* was recognized for his support for the 2010 Combined Federal Campaign
* has completed several professional development courses
* is certified for controlled substance inspection

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides for the placement of enlisted Soldiers on the retired list.  Paragraph 12-3 of this regulation requires that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement. 

14.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  The regulation states 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—

		(1)  Expressly for prejudice or cause.

		(2)  Owing to misconduct.

		(3)  Caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice.

		(4)  The result of the sentence of a court-martial.

	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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for advancement on the retired list to the rank/grade of SFC/E-7.

2.  The record shows that he was reduced to SSG/E-6 after he was found guilty of two serious charges:

* on 15 October 1998, with intent to deceive, signing an official record
* on 17 September 1998, unauthorized wearing of badge and awards

3.  Each of the charges for which he was convicted constitutes a serious breach of the good order and discipline a senior NCO is expected to exemplify.  Further, the available records indicate the charges may not have captured the full extent of his misconduct.  It appears he knowingly allowed false information to remain in his personnel record for many years, and that false information may have contributed to his being selected for promotion to SFC/E-7.  

4.  The serious nature of his misconduct outweighs any positive performance evaluations he received during his service as an SFC/E-7 and renders that service unsatisfactory.  His post-service achievements are not a basis upon which his service as an SFC/E-7 can be deemed satisfactory.  

5.  The record shows he was properly retired in the rank/grade of SSG/E-6.  In view of the foregoing, he is not entitled to the relief he has requested.

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)                                         AR20120011739





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011739



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1