BOARD DATE: 5 February 2015
DOCKET NUMBER: AR20140008716
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 was retired in the rank/grade of sergeant first class (SFC)/E-7.
2. The applicant states, while serving in the rank/grade of SFC/E-7, he requested to retire. His request was approved by the commanding general. He subsequently received a battalion-level summary court-martial which reduced him in rank/grade from SFC/E-7 to staff sergeant (SSG)/E6. However, his retirement at the rank/grade of SFC/E-7 had already been approved by a general officer. The applicant believes a lower level summary court-martial cannot override his approved retirement at the rank/grade of SFC/E-7, a rank/grade he held for approximately nine years.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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. The applicant enlisted in the Regular Army on 19 March 1973.
3. He was promoted to the rank/grade of SFC/E-7 on 28 August 1983.
4. His records contain a DD Form 2329 (Record of Trial by Summary Court-Martial), dated 28 August 1992, shows he was charged with, pled guilty, and he was found guilty of violating four specifications of Article 134, Uniform Code of Military Justice (UCMJ), for failing to maintain sufficient funds. He was sentenced to reduction in rank/grade to SSG/E-6 and forfeiture of $1,000.00 for one month. The sentence was approved on 15 September 1992.
5. On 7 October 1992, the applicant, while serving in the rank/grade of SSG/E-6, voluntarily requested retirement effective 31 March 1993. He indicated that the highest grade he held was SFC/E-7.
6. On 31 March 1993, he was released from active duty and placed on the retired list on 1 April 1993 in the rank/grade of SSG/E-6.
7. Army Regulation 15-80 (Army Grade Determination Review Board (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 nonjudicial 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 evidence of record shows he was charged with, pled guilty, and he was found guilty of violating four specifications of Article 134, UCMJ, for failing to maintain sufficient funds. His sentence included reduction to SSG/E-6, effective 15 September 1992.
2. Following his reduction to SSG/E-6, the applicant requested to retire. Therefore, his claim that his retirement as an SFC/E-7 had already been approved by a general officer is unsubstantiated.
3. Army Regulation 15-80 provides that service in a higher grade will normally be considered unsatisfactory if reversion to the lower grade is the result of a sentence by court-martial. Accordingly, his service as an E-7 should be determined to have been unsatisfactory.
4. In view of the foregoing, there is no 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) AR20140008716
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ABCMR Record of Proceedings (cont) AR20140008716
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