MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 May 1999                  
	DOCKET NUMBER:   AR1998007852

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher 		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his retired rank be corrected to Command Sergeant Major (CSM).

APPLICANT STATES:  That he came out of the Retired Reserve in January 1969 to join a USAR unit and was promoted to CSM on 5 August 1969.  As a result of this promotion, he asked that his title be changed from master sergeant (MSG) to CSM.  He also states that he understands that his retirement pay grade of E-8 will remain.  In support of his request, he has provided a copy of the request and approval for his transfer from the Retired Reserve to a USAR unit, a copy of the orders promoting him to CSM, a copy of the orders that retired him from active duty and a copy of the orders removing him from the USAR unit for having reached maximum age and transferring him back to the Retired Reserve in the grade of CSM.

EVIDENCE OF RECORD:  The applicant's military records show:

He retired from active duty on 31 January 1964 in the grade of MSG (E-8) and on 1 February 1964 was transferred to the Retired Reserve.

In 1967 he accepted civilian employment (supply technician) with an USAR unit.  On 12 November 1968 he requested a transfer from the Retired Reserve to a Ready Reserve unit against a position for an Operations Sergeant, grade E-8 in MOS 91Z50.  The request was approved by the Secretary of the Army under a finding of indispensability on 17 January 1969.

On 5 August 1969 he was promoted to the grade of SGM, MOS 91Z50 and subsequently appointed a CSM and awarded MOS 00Z50.  On 31 July 1974 he was mandatorily removed from military status in the Ready Reserve unit and transferred back to the Retired Reserve by reason of having reached maximum age.

Army Regulation 140-10, Assignment, Attachments, Details and Transfers, contains instructions for transfers to and from the Retired Reserve.  It provides in pertinent part, that a member in the Retired Reserve entitled to retired pay from the US Government may not be placed in the Ready Reserve unless the Secretary of the Army makes a special finding that his services are indispensable. The request for transfer from the Retired Reserve to the Ready Reserve will include information that there is an appropriate vacancy for the individual in a TDA or TOE USAR unit and there is no individual in the Ready or Standby Reserve available within the geographical area who is eligible for the assignment.

A Secretary of the Army finding of indispensability is limited to a specific position. A member serving under such a finding is not eligible for transfer to a different position unless a new finding for the position to which the member is to be changed is requested and approved.  A retired member transferred to the Ready Reserve “by reason of indispensability” for a specific TDA or TOE USAR unit of the Ready Reserve will be transferred back to the Retired Reserve when he ceases to occupy the position he was selected to fill or when he is no longer qualified for retention.

Members serving under findings of indispensability will not be transferred to other positions.  Members who are erroneously transferred from the position for which found indispensable will be removed when the error is discovered.  If the member was promoted as an element of the transfer, the promotion is void.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was retired from active duty at the time he was recalled from the Retired Reserve under a finding of indispensability by the Secretary of the Army. 

2.  In accordance with the provisions of indispensability findings, the member must occupy a specific position in an USAR unit, is not eligible for transfer to a different position, unless another finding for the new position is made, and will be transferred back to the Retired Reserve when he ceases to occupy the position he was selected to fill.  Further, if the member was promoted coincident with his transfer to another position, that promotion is void.

3.  The evidence of record clearly shows that a finding of indispensable was made for the applicant to occupy an E-8 Operations sergeant position in the USAR Ready Reserve.  During his assignment to that position, he was transferred to another position authorized a SGM and promoted to that grade and was further advanced to the position of CSM.  While he undoubtedly must have performed admirably in all of the positions noted, he was, nevertheless, in violation of the rules regarding his indispensability finding when he moved from his original position, as well as when he was promoted.  Therefore, his promotion to SGM and appointment as a CSM are void.

4.  His request that his rank in retirement be changed to CSM while at the same time retaining the grade of E-8 is incompatible with the Army’s rank and pay structure.  Moreover, in light of the determination that his appointment as a CSM was invalid, there are no grounds to consider his request.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_        ___  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998007852	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990520	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  129.02		
2.   129.05		
3.		
4.		
5.		
6.