IN THE CASE OF:	  

		BOARD DATE:  15 October 2013

		DOCKET NUMBER:  AR20130001859 


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 that his records be corrected to show he was placed on the Retired List in the pay grade of E-7.

2.  The applicant states, in effect, that he held the pay grade of E-7 for 14 years and was erroneously reduced.  He goes on to state that he was subsequently reduced to the pay grade of E-5 against regulations after being falsely accused of being absent without leave (AWOL) and was placed on the Retired List in the pay grade of E-5.  Only the Secretary of the Army could have authorized his reduction.

3.  The applicant provides a one-page letter explaining his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his promotion orders to E-7, copies of two Noncommissioned Officer Evaluation Reports, and copies of his permanent change of station orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Virginia Army National Guard (VAARNG) on       8 March 1974 and served until he was honorably discharged on 22 May 1981.

2.  He enlisted in the Regular Army on 1 September 1981 and served until he was honorably released from active duty on 16 December 1985.

3.  He again enlisted in the VAARNG on 5 March 1986 and was ordered to active duty in the Active Guard Reserve (AGR) program.  He was promoted to the pay grade of E-7 by the VAARNG on 1 September 1987.

4.  On 7 December 2000, he was reduced to the pay grade of E-6 for misconduct.  The applicant’s record is silent as to the nature of his misconduct.  

5.  On 14 February 2001, he was reduced to the pay grade of E-5 due to inefficiency.  His record is silent as to the nature of the allegations or the processes involved in his reduction.

6.  On 31 October 2001, he was honorably retired and was placed on the Retired List in the pay grade of E-5 effective 1 November 2001 due to sufficient service for retirement.  He had served 20 years and 7 days of active service.

7.  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.

8.  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 NJP pursuant to Article 15 of the UCMJ, or the result of the sentence of a court-martial.  One specific act of misconduct may or may not form the basis for a determination that the overall time served in that grade was unsatisfactory regardless of the period of time served in grade.  This regulation further states that if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides, in pertinent part, that the reduction authority for Soldiers in the AGR Program rests with commanders in the grade of colonel or higher for enlisted grades of   E-7 and above and commanders in the grade of lieutenant colonel or higher for pay grade E-6 and E-5.  Company commander may reduce grades E-4 and below.   

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was placed on the retired list in the rank and pay grade of SFC/E-7 which was the highest grade he held.

2.  While the applicant indeed served as an SFC/E-7 for over 13 years, he subsequently was reduced to the pay grade of E-6 for misconduct and then to the pay grade of E-5 for inefficiency.  Notwithstanding the applicant's service as an SFC/E-7 prior to his offenses/conduct for which he was reduced, it appears that these offenses/conduct so far outweighed his service as an SFC/E-7 that placing him on the retired list in the rank and pay grade of SFC/E-7 cannot be justified.

3.  The applicant’s contention that he was improperly reduced from the grade of E-7 because only the Secretary of the Army can effect such a reduction has been noted and found to lack merit.  The applicable regulation provides that commanders in the grade of colonel have the authority to effect reductions for the pay grade of E-7 and above.  

4.  Inasmuch as the applicant has provided no evidence to support his contentions, there appears to be no basis to grant his request for advancement to the pay grade of E-7 on the Retired List.

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)                                         AR20130001859





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ABCMR Record of Proceedings (cont)                                         AR20130001859



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