IN THE CASE OF:
BOARD DATE: 11 August 2015
DOCKET NUMBER: AR20140021275
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 reconsideration of his earlier request for correction of his records to show he was placed on the Retired List in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5. As a new issue, he requests a personal appearance hearing.
2. The applicant states he held the rank/grade of SSG/E-6 from 1984 to 1986 and he has over 30 years of combined active and retired service. During out-processing he was told he would need to apply when his total years of active and retired service equaled 30 years.
3. The applicant provides:
* Certificate of Retirement
* Certificate of Promotion
* two copies of Department of the Army photographs
* Army Commendation Medal Certificate
* February 1987 Leave and Earnings Statement
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050010718 on 25 April 2006.
2. The applicant does not meet the two-tiered criteria for reconsideration in that his request was neither received within 1 year of the original decision nor does it contain any new evidence. However, he raised the new issue of a personal appearance hearing which warrants consideration by the Board.
3. The applicant's records show he was born in September 1957.
4. He enlisted in the Regular Army on 7 January 1976. He held military occupational specialty 88M (Motor Transport Operator).
5. He served through multiple reenlistments and extensions in a variety of stateside and overseas assignments. He was promoted to the rank/grade of SSG/E-6 effective 1 August 1984.
6. While holding the rank/grade of SSG/E-6, he was assigned to Fort Dix, NJ. He performed the duties of SSG and he was awarded the Army Commendation Medal. He also reenlisted on 1 July 1985 while holding the rank of SSG.
7. On 26 June 1986, he was convicted by a special court-martial of violating the Uniform Code of Military Justice. The special court-martial order is not available for review with this case. However, other records show:
* reference to Special Court-Martial Order Number 59, Headquarters, U.S. Army Training Center, Fort Dix, NJ, dated 26 June 1986
* DA Form 2-1 (Personnel Qualification Record) showing he was reduced to the rank/grade of specialist four (SP4)/E-4 effective 26 June 1986
* Special Court-Martial Order Number 12, Headquarters, Department of the Army, dated 24 November 1986, dismissing and setting aside specification 1 of charge II, but indicating that on reassessment, the approved sentence modification was not warranted
8. Headquarters, U.S. Army Training Center, Fort Dix, NJ, Orders 267-42, dated 24 September 1987, promoted the applicant from SP4/E-4 to sergeant (SGT)/E-5 effective 1 October 1987.
9. On 10 October 1989, the Department of the Army imposed a bar to reenlistment against the applicant under the Qualitative Management Program.
10. In December 1990, he entered the Army Disability Evaluation System. As such, a medical evaluation board referred him to a physical evaluation board (PEB) on 9 May 1991 for osteoarthritis, calcification, and vitiligo.
11. On 9 July 1991, the PEB convened and rated his conditions at a combined rating of 40 percent. The PEB recommended his placement on the Temporary Disability Retired List (TDRL).
12. U.S. Total Army Personnel Command Orders D152-2, dated 6 August 1991, released him from active duty on 16 September 1991 and placed him on the TDRL in the rank of SGT on 17 September 1991.
13. He was honorably retired on 16 September 1991 and placed on the TDRL on 17 September 1991. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his rank/grade as SGT/E-5 effective 1 October 1987.
14. On 1 March 1993, a TDRL PEB considered his condition(s). The TDRL PEB assigned him a 40-percent combined rating and recommended his permanent retirement.
15. U.S. Total Army Personnel Command Orders D109-13, dated 9 June 1993, removed him from the TDRL and permanently retired him in the rank of SGT effective 9 June 1993.
16. On 10 July 2005, he petitioned this Board for correction of his records to show he should was placed on the Retired List in the rank/grade of SSG/E-6. However, on 25 April 2006, the Board denied his request because it determined there was no error or injustice.
17. Title 10, U.S. Code, section 1372 (Grade on Retirement for Physical Disability, Members of the Armed Forces), states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:
* the grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired
* the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired
* the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination
* the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination
18. 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 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 (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), 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 (or, in the case of members of the National Guard, on full-time National Guard duty).
19. Army Regulation 15-185 (Army Board for Correction of Military Records) governs operations of the 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 whenever justice requires.
DISCUSSION AND CONCLUSIONS:
1. The applicant actually raises three issues in his request for reconsideration: (1) retired grade when he was placed on the TDRL in 1991, (2) advancement on the Retired List when he completed 30 years of combined active and retired service, and (3) a personal appearance hearing.
2. As for his retired grade when he was placed on the TDRL and/or permanent Retired List:
a. The evidence of record shows he was advanced to SSG/E-6 on 1 August 1984. However, a court-martial convicted him and reduced him to the rank/grade of SP4/E-4 on 26 June 1986. He was promoted to SGT/E-5 again on 1 October 1987. The applicant is correct in stating he was promoted to SSG and performed in this grade from 1984 to 1986. However, he did not do so satisfactorily. A reduction from SSG to SP4 by a court-martial clearly indicates his service in the rank of SSG was not satisfactory.
b. By law, a Soldier whose name is placed on the TDRL is entitled to the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired. Because the applicant did not serve satisfactorily in the rank/grade of SSG/E-6, he was ineligible to be placed on the TDRL (or the permanent disability list) in the rank/grade of SSG/E-6.
3. As for his advancement to SSG/E-6 on the Retired List, by law, a covered retired member of the Army 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, as determined by the Secretary of the Army. Because the applicant did not serve satisfactorily in the rank/grade of SSG/E-6, he is ineligible to be advanced on the Retired List to the rank/grade of SSG/E-6.
4. As for his personal appearance hearing, his request to appear before the Board was also carefully considered. However, 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 is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary 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 the overall merits of this case are
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050010718, dated 25 April 2006.
_____________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.
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