BOARD DATE: 21 April 2015
DOCKET NUMBER: AR20140012403
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 the DD Form 214 (Report of Separation from Active Duty) of her deceased spouse, a former service member (FSM), to show he was retired in the rank/grade of sergeant first class (SFC)/E-7, the highest rank/grade held satisfactorily while on active duty.
2. The applicant states, in effect, that although the FSM retired at the rank/grade of staff sergeant (SSG)/E-6, he previously held the rank of SFC for approximately 3 to 4 years. She contends that the FSM should be advanced on the retired list to SFC/E-7 because it has a direct effect on the total amount of income that she receives through the Survivor Benefit Plan.
3. The applicant provides a copy of the FSM's DD Form 214 ending 31 October 1978 and his Certificate of Death.
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 FSM enlisted in the Regular Army on 10 June 1958 as a private.
3. A review of his records shows that he was promoted and reduced in grade during his period of service. He was promoted to SFC/E-7 on 4 September 1969.
4. Summary Court-Martial Order Number 1, issued by Headquarters, 1st Battalion (Airborne), 504th Infantry, Fort Bragg, NC, dated 4 January 1972, shows the FSM pled not guilty, but was found guilty, of failing to go to his appointed place of duty. His punishment included reduction to SSG/E-6.
5. The FSM's DA Form 2-1 (Personnel Qualification Record) shows in item 28 (Item Continuation) that his Date of Rank (DOR) to SSG was 4 January 1972.
6. The FSM's DA Form 3713 (Data for Retired Pay) shows in:
* item 3 (Retired Grade) - "SSG E6"
* item 8 (Highest Grade Attained) - "SFC E7"
7. The FSM completed 20 years, 2 months, and 5 days of active Federal service and retired on 31 October 1978 in the rank/grade of SSG/E-6. His DOR to SSG is shown as 4 January 1972.
8. Army Regulation 15-80 (Army Grade Determination Review Board (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 requests correction of the FSM's DD Form 214 to show he was retired in the rank/grade of SFC/E-7, the highest rank/grade held on active duty.
2. The evidence of record shows the FSM was convicted by a summary court-martial for failing to go to his appointed place of duty. His sentence included reduction to SSG/E-6.
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 court-martial sentence. Accordingly, the FSM's service in the rank of SFC/E-7 was properly found to be unsatisfactory.
4. In view of the foregoing, there is no error or injustice. Therefore, the applicant's request should be denied.
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) AR20140012403
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ABCMR Record of Proceedings (cont) AR20140012403
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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