IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20140020058 


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, in effect:

* advancement on the Retired List in the rank and pay grade of sergeant first class (SFC)/E-7
* a personal appearance before the Board

2.  The applicant states the highest grade he attained was SFC/E-7.  He was reduced in grade for a false positive urine test for allegedly smoking an illegal substance (marijuana).  He has felt this injustice for more than 30 years.  He would like things to be corrected before he dies. 

3.  The applicant provides a copy of Orders 100-31.

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 the cases 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.

2.  The applicant enlisted in the Regular Army (RA) in pay grade E-1 on 6 June 1968.  He completed training and was awarded military occupational specialty 16F (cannoneer).  He was promoted to sergeant/ E-5 on 10 September 1969.  He served through a period of continuous reenlistments. 

3.  He was promoted to staff sergeant (SSG)/E-6 on 23 February 1976.

4.  In a recommendation for promotion memorandum, dated 18 November 1980, the applicant's battery commander recommended him for promotion to SFC/E-7 by the forthcoming E-7 Selection Board.  The applicant's battalion commander concurred with this promotion recommendation on 1 December 1980.

5.  On 5 January 1982, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for falsely making the signature of his commanding officer, with the intent to defraud, to a certain document.  His punishment was reduction to pay grade E-5.  He did not appeal the punishment.

6.  He was reduced to SGT/E-5 on 11 January 1982.

7.  His records contain and he provided a copy of Orders 100-31 issued by the U.S. Army Military Personnel Center on 1 July 1982, promoting him to SFC/E-7 with an effective date and date of rank of 1 August 1982.  (There is no revocation order filed in his official military personnel file.)

8.  Orders 160-91 issued by Headquarters, 1st Cavalry Division, on 18 August 1982, promoted him again to pay grade E-6 with a date of rank of 6 August 1982 and an effective date of 1 September 1982.

9.  On 6 March 1986, he accepted NJP under Article 15, UCMJ, for wrongfully using marijuana between 5 and 15 January 1986.  His punishment included reduction to pay grade E-5, forfeiture of $300.00 pay for 2 months, and 45 days of extra duty and restriction.  He elected to appeal the punishment and to submit additional matters.  

10.  In a statement, dated 6 March 1986, the applicant stated the report confirmed he had tetrahydrocannabinol in his system even though he did not physically and willfully smoke marijuana.  He did not feel he was being punished for smoking marijuana, but for it being in his system.  There was no way he could prove that, so his integrity had to speak for him.  He wanted to make it known, before his punishment was made, that he had three children.  His 17-year old son was scheduled to attend Baylor University upon graduation; his 12-year old daughter required a tutor because of failing grades; his 11-year old son was presently in Selma, AL, in a coma due to sickle cell anemia; and his mother was with his youngest son.  Due to his present situation, if a fine or extra duty was imposed, it would be financially difficult because of his hardships.

11.  On 6 March 1986, the applicant’s brigade commander suspended only the portion of the punishment concerning forfeiture of pay and restriction until 6 September 1986.  He also directed the NJP be filed in the performance portion of the applicant’s official military personnel file.

12.  He was reduced to SGT/E-5 on 6 March 1986.

13.  Orders 44-9 issued by Headquarters, 1st Cavalry Division, on 7 March 1988, released him from active duty based on sufficient length of service for retirement and placed him on the Retired List effective 30 June 1988.  The orders show his rank as SGT.

14.  He was honorably retired on 30 June 1988.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) lists his rank and grade as SGT/E-5 with an effective date of 6 March 1986.  

15.  On 8 September 2000, the Army Grade Determination Review Board (AGDRB), in response to his request for advancement on the Retired List, determined the highest grade in which he had served satisfactorily for the purpose of computation of retired pay was E-6.  The AGDRB concluded that the date he became eligible for that advancement on the Retired List would be determined by the Army Reserve Personnel Command.  Once the date had been determined, the applicant and the Defense Finance and Accounting Service-Cleveland Center would be notified.

16.  On 27 November 2000, Army Reserve Personnel Command notified the applicant in writing of his advancement on the Retired List to the grade of 
SSG/E-6 effective 7 June 1998 and provided him a corrected retirement certificate.

17.  Title 10, U.S. Code, section 3964, specifies 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 active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.  This section applies to warrant officers of the Army, enlisted members of the RA, and Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty. 

18.  Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  With regard to advancement on the Retired List to the rank of SFC/E-7:

   a.  The evidence of record shows the applicant was promoted to E-6 with a date of rank of 6 August 1982 and an effective date of 1 September 1982.  He was reduced to SGT/E-5 on 6 March 1986 as a result of NJP.  

   b.  Contrary to his contention, he accepted NJP via a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) for wrongfully using a controlled substance, to wit: marijuana.  He elected to appeal the punishment and requested suspension of his punishment to forfeiture of pay and extra duty.  This portion of his appeal was granted.  His reduction to pay grade E-5 was not suspended and, as result, he was reduced to pay grade E-5 accordingly on 
6 March 1986.

   c.  Notwithstanding Orders 160-91 promoting him to pay grade E-7, it appears that promotion was not authorized as a result of his reduction from pay grade E-6 to E-5 on 11 January 1982.  He was again promoted to pay grade E-6 on 6 August 1982.  He was again reduced to pay grade E-5 on 6 March 1986 as a result of NJP.  

   d.  He retired on 30 June 1988 in pay grade E-5.  By law, he was retired in the grade he held on the date of retirement.  On 8 September 2000, the AGDRB determined the highest grade he served satisfactorily for the purpose of computation of retired pay was E-6.  On 27 November 2000, he was notified of his advancement on the Retired List in the grade of SSG/E-6 effective 7 June 1998 and was provided a corrected retirement certificate.

   e.  There is no evidence of record and he did not provide sufficient evidence to show he satisfactorily held the grade of SFC/E-7 prior to or at the time of his retirement to qualify for advancement on the Retired List in that grade.  Therefore, there is no error or injustice and no basis for correction.

2.  With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20140020058





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ABCMR Record of Proceedings (cont)                                         AR20140020058



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