IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140016642 


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 reinstatement of his rank/pay grade to sergeant first class (SFC)/E-7.

2.  The applicant states:

* he was sentenced to 9 months of confinement as a result of his court-martial
* the military judge did not reduce his rank, but he was reduced to E-1 because of the sentence
* he was able to retire in the rank of E-1 after 22 years of service
* the military judge stated his wife and family deserved his retirement
* there was no sentence to reduce his rank

 3.  The applicant provides:

* Headquarters, XVIII Airborne Corps and Fort Bragg, General Court-Martial Order (GCMO) Number 11
* service personnel records pertaining to his GCMO

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 26 November 1984 and he remained on active duty through continuous reenlistments.  He was promoted to:

* staff sergeant (SSG) effective 1 February 1994
* SFC effective 1 April 1998

3.  Headquarters, XVIII Airborne Corps and Fort Bragg, GCMO Number 11, dated 5 May 2006, shows the applicant was convicted of attempting to steal public funds, military property, of a value of more than $500.00 by a general court-martial contrary to his plea on 27 January 2006.  He was sentenced to confinement for 9 months and reduction to E-1.  On 5 May 2006, the convening authority approved the sentence.

4.  He retired on 28 February 2007 in the rank of private one (PV1)/E-1.

5.  There are no orders showing he was promoted to SFC after 5 May 2006 or prior to his retirement on 28 February 2007.

6.  Title 10, U.S. Code, section 3964 (Higher Grade after 30 Years of Service:  Warrant Officers and Enlisted Members), states:

	a.  Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he or she served on active duty satisfactorily (emphasis added), as determined by the Secretary of the Army.

	b.  This section applies to (1) warrant officers of the Army, (2) enlisted members of the Regular Army, and (3) Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty.

7.  An eligible individual should submit an application to the Army Grade Determination Review Board (AGDRB) when he or she reaches a total of 30 years of time on active duty plus time on the Retired List.  Although Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) allows applications to be submitted prior to reaching the 30-year point when misconduct is not an issue, neither the U.S. Human Resources Command nor the Defense Finance and Accounting Service have a suspense system that can accommodate early applications.

8.  Application letters should be addressed to the AGDRB, 251 18th Street South, Arlington, VA  22202-3531.  The AGDRB will convene to determine the highest grade the applicant served satisfactorily while on active duty.  Applicants are not entitled to appear in person before the AGDRB; therefore, eligible individuals should attach copies of any relevant documents in support of the request.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that the military judge did not reduce his rank and there was no sentence to reduce his rank.  The GCMO clearly states he was sentenced to confinement for 9 months and reduction to E-1 and the convening authority approved the sentence on 5 May 2006.

2.  He was reduced from SFC/E-7 to PV1/E-1 in 2006 as a result of a general court-martial conviction.  There is no evidence of record showing he was promoted to SFC/E-7 after 5 May 2006 or prior to his retirement.  Therefore, there is insufficient evidence on which to base reinstating his rank/pay grade to SFC/E-7.

3.  Nevertheless, the law states a retired member of the Army who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he or she served on active duty satisfactorily (emphasis added), as determined by the Secretary of the Army.

4.  Based on his court-martial conviction in May 2006 while holding the rank of SFC, it appears he served on active duty satisfactorily through the rank of SSG/E-6.  Since he was in a continuous active status from November 1984 until his retirement in February 2007 and he will reach 30 years of combined active service plus service on the Retired List effective 17 June 2015, he may submit an application to the AGDRB for advancement on the Retired List in the highest grade satisfactorily held not earlier than 17 June 2015.

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 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)                                         AR20140016642



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ABCMR Record of Proceedings (cont)                                         AR20140016642



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