BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130002657 


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 correction of his record to show he retired in the highest rank/grade he held while serving on active duty, sergeant first class (SFC)/E-7.

2.  The applicant states, in effect, that a Soldier cannot retire honorably in the rank/grade of specialist (SPC)/E-4 and that after completing 20 years of service he should have retired in the last rank he held prior to retirement, SFC.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 February 1991.  He successfully completed training and held military occupational specialty 92A (Automated Logistical Specialist).  He subsequently served through a series of reenlistments or extensions, performing duties in various positions and duty stations.  The highest rank/grade he attained while serving on active duty was SFC/E-7.  However, at the time of his discharge he held the rank/grade of SPC/E-4.

2.  Section III of his Enlisted Record Brief (ERB) shows he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 May 2000.  On 1 January 2005, he was promoted to the rank/grade of SFC/E-7.

3.  On 8 February 2006, the Acting Commander (AC) of the U.S. Army Quartermaster Center and School, Fort Lee, VA issued the applicant a General Officer Memorandum of Reprimand (GOMOR) on behalf of the Commanding General.  The applicant was reprimanded for his misconduct related to his association with a known prostitute, allegations raised by her that they both engaged in oral sex and sexual intercourse for money, and for assaulting her on or about 3 January 2006.  Additionally, on or about 6 July 2004, a similar incident occurred in Washington, PA, wherein the applicant was accused of having sex and later assaulting an escort/prostitute.  In both cases he admitted to law enforcement officers that he had called the escort services to arrange sexual favors in exchange for money.  The AC told the applicant his conduct was disgraceful and demonstrated a complete lack of understanding and disregard for Army values.  Despite his rank and experience, the applicant had failed to meet the standards of personal conduct that are both expected and required of Soldiers in the U.S. Army and he had proven that he did not deserve the special trust and confidence the Army had placed in him.  The applicant was afforded an opportunity to provide a rebuttal.

4.  The applicant acknowledged receipt of the GOMOR and elected not to submit a rebuttal.  On 14 February 2006, after considering all available information surrounding the applicant's misconduct, the AC directed that the GOMOR and supporting documentation be filed in his Official Military Personnel File (now known as the Army Military Human Resource Record (AMHRR) in accordance with the provisions of Army Regulation 600-37, paragraph 3-4b.

5.  On 9 February 2006, the applicant was dropped from attending the Automated Logistical Specialist Advanced Noncommissioned Officer Course (ANCOC) conducted at the NCO Academy, Fort Lee, VA, due to the aforementioned disciplinary reasons.

6.  On 19 April 2010, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ) for violating Article 112a, UCMJ by wrongfully using cocaine between on or about 21 and 26 February 2010.

7.  The applicant's record contains a DA Form 2166-8 (NCO Evaluation Report (NCOER)) for the period 16 December 2009 through 15 December 2010.  This report shows his rater indicated he did not demonstrate the following Army Values:  Loyalty, Duty, Self-less Service, Honor, Integrity, and Personal Courage. 
The rater also noted the applicant had tested positive on numerous urinalyses, consistently lied and had failed to report to daily accountability formations, and could not be placed in charge of any tasking of Soldiers due to his lack of presence.  The rater evaluated his overall potential for promotion and/or service in positions of greater responsibility as marginal and indicated that the applicant needed improvement in the following areas:  Competence, Leadership, Training, Responsibility and Training, and Responsibility and Accountability.  The senior rater evaluated the both applicant's overall performance and his potential as poor and provided the following comments:

* "do not recommend for any future promotions or military education until addiction is under control
* current performance is below standard for pay grade
* future potential is severely minimized due to addiction"

8.  On 11 April 2011, the applicant appeared before a Special Court-Martial on 11 April 2011 at Fort Campbell, KY where he pled guilty and was found guilty of three specifications of violating Article 112a of the UCMJ by wrongfully using cocaine during three distinct periods of time.  As a result, he was sentenced to be reduced to the rank/grade of SPC/E-4 and to be confined for 6 months.  The sentence was adjudged on 11 April 2011 and the effective date of the reduction in grade was established as 25 April 2011.

9.  Orders 110-15, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, OK, dated 20 April 2011, reduced him in rank/grade from SFC/E-7 to SPC/E-4, effective 25 April 2011, as a result of trial by Special Court-Martial on 11 April 2011.

10.  The applicant was released from confinement by military authorities and returned to duty on 4 September 2011.

11.  Orders 290-1307, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, OK, dated 17 October 2011, released the applicant from active duty on 31 December 2011 and placed him on the Retired List on 1 January 2012, in the retired rank/grade of SPC/E-4.

12.  His DD Form 214 shows he was honorably retired in the rank/grade of SPC/E-4 on 31 December 2011 due to sufficient service for retirement.  He was credited with 20 years, 5 months, and 2 days of creditable active duty service.  He was also credited with lost time during his confinement from 4 April through 5 September 2011.

13.  Department of Defense Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations) states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

14.  Title 10, U.S. Code, Section 3964 provides that an enlisted member of the Regular 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.

15.  Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) governs the actions and composition of the AGDRB.
Chapter 2 (General) provides in:

	a.  paragraph 2–4 (Grade determination considerations) that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay.  Although a lower grade determination may affect an individual adversely, it is not punitive.  The AGDRB will consider each case on its own merits.  Generally, 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.  Circumstances pertinent to whether such service is found satisfactory include, but are not limited to, the following:

		(1)  medical reasons, which may have been a contributing or decisive factor in a reduction in grade, misconduct, or substandard performance;

		(2)  compassionate circumstances; and

		(3)  length of time in grade;

	b.  paragraph 2–5 (Unsatisfactory service) provides that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when:

		(1)  the highest grade was a result of a terminal leave promotion; or

		(2)  reversion to a lower grade was:

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be advanced on the Retired List from SPC/E-4 to SFC/E-7 which was the highest grade that he held was carefully considered.

2.  Evidence shows the applicant did hold the grade of SFC/E-7.  However, on the day before he retired he held the grade of SPC/E-4 following a reduction due to court-martial.  Therefore, he was placed on the Retired List in that grade.  

3.  By law and regulation, in order to be placed on the Retired List at the highest grade held a Soldier must have 30 years of active service at the time of retirement.  The law allows for members to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active duty service and time on the Retired List equals 30 years.  

4.  He retired on 31 December 2011.  He completed 20 years, 5 months, and 2 days of creditable active service; therefore, he would have to remain on the Retired List approximately 9 years, 6 months, and 28 days before he can be advanced on the Retired List.  He has not met the legal requirement for advancement on the Retired List and as such his request should not be granted at this time.  As he gets closer to the 30-year point, he should apply to the AGDRB for advancement on the retired list.

5.  In view of the foregoing, he is not entitled to 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)                                         AR20130002657



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ABCMR Record of Proceedings (cont)                                         AR20130002657



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