IN THE CASE OF:
BOARD DATE: 17 April 2014
DOCKET NUMBER: AR20130012737
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 record to show he was retired in the rank/grade of sergeant first class (SFC)/E-7.
2. The applicant states he was not aware until recently that he could have been retired at the highest rank attained. He states he made a bad mistake after serving in Vietnam, but he did serve honorably and he completed his career.
3. The applicant provides:
* DD Form 214 (Report of Separation from Active Duty), for the period ending 31 March 1979
* DA Form 2-2 (Insert Sheet to DA Form 2, Record of Court-Martial Conviction)
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 27 March 1959, the applicant was inducted into the Army of the United States. On 26 January 1960, he was discharged for the purpose of immediate enlistment in the Regular Army.
3. On 27 January 1960, the applicant enlisted in the Regular Army. His record shows he held military occupational specialties 13B (Cannon Crewman) and 11E (Armor Crewman) during his period of active military service.
4. On 18 January 1967, he was promoted to the rank/grade of SFC/E-7.
5. He served in the Republic of Vietnam from on or about 11 April 1968 through on or about 5 April 1969.
6. On 18 November 1970, before a special court-martial at Fort Campbell, KY, he was found guilty of the following specifications and Charges:
* 5 specifications of Charge I, for violating Article 92 of the Uniform Code of Military Justice (UCMJ), by failing to obey a lawful order; specifically, for wrongfully instructing basic training privates to collect money from platoon members in support of a going-away gift for outgoing commanders
* 4 specifications of Charge II, for violating Article 134 of the UCMJ, by wrongfully and unlawfully abusing his official position by instructing basic training privates to collect money from platoon members in support of a going-away gift for an outgoing commanders
He was sentenced to be reduced to the rank/grade of sergeant (SGT)/E-5; however, the approval authority suspended that part of the sentence in excess of reduction to the rank/grade of staff sergeant (SSG)/E-6.
7. On 27 November 1970, he was reduced in rank/grade from SFC/E-7 to SSG/E-6, as a result of conviction by special court-martial.
8. On 31 March 1979, he was honorably retired from the Army, by reason of sufficient service for retirement, at the conclusion of 20 years and 5 days of active service. His DD Form 214 shows he was retired in the rank/grade of SSG/E-6.
9. On 1 April 1979, he was placed on the Retired List in the rank/grade of SSG/E-6.
10. Army Regulation 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB. Most grade determinations do not require action by the AGDRB, or the exercise of discretion by other authorities, because they are automatic grade determinations that result from the operation of law and this regulation.
a. 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.
b. Paragraph 2-5 outlines grade determination considerations. It states that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by non-judicial punishment pursuant to Article 15 of the UCMJ; or the result of the sentence of a court-martial. It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his record should be corrected to show he was retired in the rank/grade of SFC/E-7.
2. The evidence or record shows he was reduced in grade from SFC/E-7 to SSG/E-6 following his conviction by a special court-martial. His sentence included a reduction to SGT/E-5; however, the approval authority suspended that part of the sentence in excess of reduction to the rank/grade of SSG/E-6. There is no evidence that shows his conviction was unjust or improper.
3. Army Regulation 15-80 provides that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade results from the sentence of a court-martial. Accordingly, his service as a SFC/E-7 was unsatisfactory and the highest grade in which he served satisfactorily was SSG/E-6.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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) AR20090005877
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130012737
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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