IN THE CASE OF: 

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130017764 


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 reconsideration of his request to be advanced on the Retired List to the pay grade of E-7.

2.  The applicant states, in effect, that he should be advanced on the Retired List to the pay grade of E-7 because he has a total of 30 years active service and service on the Retired List and because he was told by his brigade commander that he would only receive a reprimand and would keep his rank.  He always did what was right and he provides a letter of support from his supervisor and copies of his evaluation reports to support his claim.  He made a stupid mistake that has caused him and his family very much mental anguish and he requests that the Board advance him to the rank he held (E-7).

3.  The applicant provides copies of a letter from a sergeant major, DD Form 214 Worksheet, evaluation reports, a certificate of appreciation, mobilization orders, denial of his request to change his date of retirement, a letter of reprimand, and internet articles regarding two individuals who were identified as wearing unauthorized awards.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011739, on 8 January 2013.

2.  His record shows he was promoted to staff sergeant (SSG)/E-6 effective 1 November 1987 and to SFC/E-7 effective 1 August 1993.   He was serving on active duty in the Active Guard Reserve (AGR). 

3.  His NCO Evaluation Report for the period September 2001 through August 2002 shows he was rated as "marginal."  His senior rater rated his overall performance as poor and indicated he had poor potential for promotion and/or service in positions of greater responsibility.

4.  An entry in his transaction history in the Integrated Web Services shows a staff member of the U.S. Army Human Resources Command (HRC) contacted him by telephone on 17 May 2002 to discuss his separation documents.  The HRC staff member entered the following comments documenting his contact with the applicant:

	Contacted [the applicant] telephonically to discuss his separation documents.  Advised soldier I had located his 214's from Navy; 214's from MC, NGB forms from TXARNG; CAARNG; ORARNG; MOARNG; MOAIRNG.  Asked the soldier what unit he was in during Vietnam because soldier's [DA Form 2-1 (Personnel Qualification Record)] reflects he was in Vietnam from Oct 68 - Oct 69.  Soldier immediately responded he was never in Vietnam and became defensive without my asking about the entries on his 2-1.  Also asked the soldier if he was never in Vietnam why was he wearing the [Combat Infantryman Badge (CIB)] and [Vietnam Campaign Medal] and [Vietnam Service Medal] on a photo he had taken on 18 March 1986.  Soldiers [sic] excuse was he was told to wear them on his uniform because they were on his DA Form 2-1.  The reason I questioned his Vietnam service was because it is very unlikely a soldier who was in the Navy from 68 Jul thru 70 Jan and discharged under honorable conditions [would be] entitled to be wearing the CIB.  His 214 for the Navy time does not reflect any foreign and or sea duty.  This soldier is a 75H40 and he claims he has no idea how those entries got on his 2-1.  He claims he has lined through those entries no less than 5 times and yet the 2-1 currently prepared is dated 22 August 1984 and contains his signature.

5.  Corrected Special Court-Martial Orders show that on 18 September 2003 the applicant pleaded guilty and was found guilty of two charges:

* on 15 October 1998, with intent to deceive, signing an official record
* on 17 September 1998, unauthorized wearing of badge and awards

and was sentenced to be reduced to sergeant (SGT)/E-5.  Only so much of the sentence as provided for reduction to staff sergeant/E-6 was approved and ordered executed.  

6.  On 31 October 2003, he was retired in the rank/grade of SGT/E-5.  The DD Form 214 issued at that time shows he completed 23 years, 4 months, and 16 days of active duty service.

7.  On 15 June 2006, in ABCMR Docket Number AR20050013950, the Board considered the applicant's request for correction of his record to show he retired in pay grade E-6 based on his approved court-martial sentence.  The Board recommended correction of his record to show he retired and was placed on the retired list in pay grade E-6.  The recommendation was approved on 10 July 2006.  

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides for the placement of enlisted Soldiers on the retired list.  Paragraph 12-3 of this regulation requires that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement. 

9.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  The regulation states service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when:

	a.  The highest grade was a result of a terminal leave promotion.

	b.  Reversion to a lower grade was—

		(1)  Expressly for prejudice or cause.

		(2)  Owing to misconduct.

		(3)  Caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice.

		(4)  The result of the sentence of a court-martial.

	c.  There is sufficient unfavorable information to establish that the Soldier’s service in the grade in question was unsatisfactory.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be advanced on the Retired List to the pay grade of E-7 has been noted and reconsidered and found to lack merit.  The applicant wore awards that he knew he had not earned and while it cannot be determined exactly when it first occurred, it does not appear that he served satisfactorily in the pay grade of E-7.

2.  The applicant betrayed the trust placed in him as a senior non-commissioned officer by knowingly allowing false information to remain in his personnel record for many years and which may have contributed to his being selected for promotion to SFC/E-7.  

3.  Accordingly, the serious nature of his misconduct outweighs any positive performance evaluations he received during his service as an SFC/E-7 and renders that service unsatisfactory.

4.  Therefore, after reviewing the evidence submitted by the applicant and the evidence of record, it appears that he was properly retired in the rank/grade of SSG/E-6 and that there is 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 to amend the decision of the ABCMR set forth in Docket Number AR20120011739, dated 8 January 2013.



      _______ _  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)                                         AR20130017764





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ABCMR Record of Proceedings (cont)                                         AR20130017764



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