BOARD DATE: 5 February 2013
DOCKET NUMBER: AR20120012504
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, in effect, correction of his military records to show his retired rank and pay grade as sergeant first class/pay grade E-7. He also requests transfer of all court-martial and adverse paperwork to the restricted portion of his Army Military Human Resource Record (AMHRR).
2. The applicant states a general court-martial reduced him in rank and pay grade while he was serving on active duty. It has been about 15 years and the reduction has served its purpose.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 15 June 1977, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 11B (Infantryman).
3. The applicant was promoted through the ranks to sergeant first class/pay grade E-7 effective 1 August 1993.
4. General Court-Martial Order Number 8, U.S. Army Infantry Center and Fort Benning, Fort Benning, Georgia, dated 29 February 1996, shows:
a. the applicant was charged with violation of Article 128 of the Uniform Code of Military Justice (UCMJ) for assault consummated by battery (two specifications);
b. the applicant was charged with violation of Article 134 of the UCMJ for kidnapping and wrongful restraint;
c. the applicant was sentenced to reduction to staff sergeant/pay grade E-6, forfeiture of $500.00 pay per month for 6 months, and restriction for 2 months; and
d. the portion of the sentence pertaining to restriction was not approved by the convening authority. The remainder of the sentence was ordered to be executed.
5. The applicant was reduced to staff sergeant/pay grade E-6 effective 4 December 1995, the date the court-martial sentence was adjudged.
6. On 30 June 1997, the applicant retired after completing 20 years and 16 days of creditable active duty service. On 1 July 1997, he was placed on the Retired List In the rank of staff sergeant/pay grade E-6.
7. On 15 and 16 January 2013, the Army Review Boards Agency Grade Determination Board considered the applicant for advancement on the Retired List at his 30-year point under the provisions of Title 10, U.S. Code, section 3964. Advancement was denied.
8. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the Army Military Human Resource Records Management Program.
a. All personnel information recorded under the authority of this regulation is the property of the U.S. Government. Once recorded, it will not be removed except as provided by law or this regulation.
b. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from a section or moved to another part of the AMHRR unless directed by one or more of the following:
* ABCMR
* Department of the Army Suitability Evaluation Board
* Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (HRC)
* AMHRR custodian when documents have been improperly filed
* Commander, HRC, ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* Chief, Appeals Branch, National Guard Personnel Center
9. Title 10, U.S. code, section 3964, provides that each retired enlisted member of the Army who is retired with less than 30 years of active service is entitled to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily as determined by the Secretary of the Army when his active service plus his service on the Retired List totals 30 years.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that his military records should be corrected to show his highest grade satisfactorily held as sergeant first class/pay grade
E-7. He further contends that all documentation pertaining to his court-martial and adverse paperwork should be transferred to the restricted portion of his AMHRR.
2. The available evidence clearly shows the applicant was sentenced by general court-martial to a reduction in pay grade.
3. The applicant has not provided any documentation or a convincing argument to show he is deserving of advancement in grade on the Retired List. Furthermore, his argument that the court-martial has served its purpose is not sufficient as a basis for moving his adverse records to the restricted portion of his AMHHR.
4. In view of the above, the applicant's request should be 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 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) AR20120012504
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