IN THE CASE OF:	

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130018426


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 advancement on the Retired List to the rank/pay grade of first sergeant (1SG)/E-8, the highest grade he satisfactorily held.

2.  The applicant states:

* he was court-martialed for a positive drug test and reduced in rank – it   was a false positive drug test
* his counsel informed him to plead guilty – he told him there would be no reduction in rank, which wasn't true, he was reduced in rank/grade to staff sergeant (SSG)/E-6
* later, after an appeal, his retired grade was upgraded to sergeant first class (SFC)/E-7 – the appeal board ruled that SFC/E-7 was the last rank/grade he held successfully
* he served as a 1SG for 8 years – for 4 of those years he was frocked into the grade
* he successfully led a unit to Desert Storm and back
* he dedicated his life to the military
* he was reduced in rank at a time when lower enlisted Soldiers got a slap on the hand and were given a second chance for the same offense
* he received bad information from counsel – had he been given good counsel, he would have beat the charges
* those who know him know he would never use drugs
* his commander at the time of the offense, Major General (MG) Vxxx, recommended the charges be dropped
* bad counsel is the reason he was reduced in rank
* the loss of retirement income is not important - it has been 16 years since the injustice and he has lost over  $100,000 in retirement income
* he feels the loss of retirement income is punishment enough for bad counsel and a false positive drug test

3.  The applicant provides no additional evidence in support of his request.

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 or about 1 August 1974, the applicant enlisted in the Regular Army.  

3.  He served through multiple reenlistments, in various stateside and overseas assignments, and on 23 October 1984, he was promoted to the rank/grade of SFC/E-7.

4.  On 31 August 1989, he was reassigned to Battery A, 3rd Battalion, 6th Air Defense Artillery Regiment at Fort Bliss, TX, where he served as the unit First Sergeant.  Commensurate with this assignment, he was frocked to the rank of 1SG; however, his grade remained E-7.

5.  On 1 March 1991, he was promoted to the rank/grade of master sergeant (MSG)/E-8, with lateral appointment as a 1SG/E-8.  

6.  He served in Southwest Asia from 13 August 1993 through 6 December 1993.

7.  Special Court-Martial Order Number 10, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX on 15 July 1997 shows that on 5 June 1997 he was convicted of violating Article 112a of the Uniform Code of Military Justice (UCMJ); specifically, for wrongfully using marijuana between on or about 12 January 1997 and on or about 12 February 1997.  He was sentenced to reduction in rank/grade from MSG/E-8 to SSG/E-6.  The sentence was approved and ordered duly executed.

8.  His record is void of documentation that supports his contention that his conviction was improper, since it resulted from a false-positive test result for marijuana usage, or that shows he did not use marijuana, or that supports his contention that his conviction resulted from his incompetent counsel.  

9.  On 31 July 1997, he was honorably retired from the Army in the rank/grade of SSG/E-6.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 23 years of total active service at the time of his separation.

10.  On 1 August 1997, he was placed on the Retired List in the rank/grade of SSG/E-6.

11.  On 1 March 2004, the Army Grade Determination Review Board (AGDRB) considered his request for advancement on the Retired List to E-8, as the highest grade he satisfactorily held.  The AGDRB determined he had not served satisfactorily as an E-8, due to his special court-martial conviction; however, they did agree he had served satisfactorily as an E-7.  Consequently, he was advanced on the Retired List to E-7, effective 1 March 2004, in accordance with Title 10, U.S. Code, Section 3964 (Higher grade after 30 years of service:  warrant officers and enlisted members).

12.  Army Regulation 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB.  

   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's request for advancement on the Retired List to the rank/pay grade of 1SG/E-8 was carefully considered.

2.  He contends his conviction was improper, since it resulted from a false-positive test result for marijuana usage.  He contends he did not use marijuana and his guilty conviction was due to the incompetence of his defense counsel.

3.  His record is void of documentation that supports his contention that his conviction was improper, since it resulted from a false-positive test result for marijuana usage, or that shows he did not use marijuana, or that supports his contention that his conviction resulted from his incompetent counsel.  

4.  The evidence or record shows he was convicted by a special court-martial for wrongful marijuana usage.  His sentence included reduction to SSG/E-6.  

5.  Army Regulation 15-80 provides that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade results from misconduct.   Accordingly, his service as an E-8 was determined to have been unsatisfactory; however, the AGDRB found he had served satisfactorily as an E-7 and advanced him on the Retired List in accordance with that finding.  

6.  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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ABCMR Record of Proceedings (cont)                                         AR20130018426



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