IN THE CASE OF:	   

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20130000604 


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, advancement on the retired list to the grade/rank of staff sergeant (SSG)/E-6, the highest grade he held on active duty pursuant to the provisions of Title 10, U.S. Code (USC), section 3964.

2.  The applicant states he accepted the results of a special court-martial for making a false official statement.  He received an honorable discharge with a Good Conduct Medal and he was reduced in rank/grade from SSG/E-6 to sergeant (SGT)/E-5.  He states he was told that 10 years after his retirement in the grade of E-5 he could request and receive reinstatement to SSG/E-6 with pay and benefits restored.  He was punished for his error in judgment over 20 years ago.  He has lived an honorable and quiet life during the 20 plus years following his retirement from the military.  Although he can't forget his error in judgment he still remembers his honorable and faithful service in the U.S. Army.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 1 August 1977 
* DD Form 214 for the period ending 31 July 1992

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.  On 31 July 1992, the applicant was retired from the military in the rank of SGT/E-5 with more than 20 years of active service.  He served in military occupational specialty 95B (Military Police) during the last 13 years of his tenure on active duty.

3.  Special Court-Martial Order Number 1, issued by Headquarters, 1st Infantry Division Support Command, dated 28 July 1992, shows that on 28 May 1992, pursuant to his plea of "not guilty," the applicant was convicted of making and/or signing a false official statement with the intent to deceive.  He was sentenced to reduction to the grade of SGT/E-5.

4.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) generally states that a grade 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.  It also provides, in pertinent part, that circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the grade at which the misconduct was committed.

5.  Paragraph 2-5 of this same regulation provides, in pertinent 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, was owing to misconduct, caused by nonjudicial punishment (NJP) pursuant to Article 15 of the Uniform Code of Military Justice (UCMJ), or the result of the sentence of a court-martial.  

6.  Title 10, U.S. Code, section 3964, states that each retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, 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.  This applies, in pertinent part, to enlisted members of the Regular Army.



DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a special court-martial and reduced in rank to SGT/E-5 for making a false official statement.  He was placed on the retired list in the rank of SGT/E-5.    

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

3.  As a noncommissioned officer (NCO), he had the duty to support and abide by the UCMJ and to set the example for subordinate Soldiers.  By committing the aforementioned offense, he knowingly risked a military career and violated the trust and confidence placed in him as a military police NCO.  There is no evidence of acts or achievement prior to or following his retirement that would be so significantly meritorious as to mitigate his misconduct.  Notwithstanding the applicant's service as an SSG/E-6 prior to his offense, there is an insufficient basis for advancing him on the retired list to SSG/E-6.

4.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20130000604



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ABCMR Record of Proceedings (cont)                                         AR20130000604



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