MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            22 September 1999
	DOCKET NUMBER:   AR1998012974

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		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:  In effect, that he be advanced on the retired list to the rank and pay grade of Colonel/0-6 (COL/0-6) which is the highest grade he held.

APPLICANT STATES:  In effect, that he has been informed that after 10 years in a retired status he could request his retirement grade be changed to the highest grade he satisfactorily held while on active duty.

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

On 9 December 1958 the applicant entered onto active duty as a USAR 2nd Lieutenant and served honorably for 21 years, 5 months, and 22 days. 

On 1 January 1980, the applicant was promoted to the rank and pay grade of COL/0-6, with a date of rank of 3 December 1979, while serving at Scott Air Force Base, Illinois.  The applicant in accepting his promotion incurred a two year service obligation and as a result was committed to serving on active duty in that grade until 2 December 1981. 

On 24 April 1980, the applicant was notified that he was selected for an assignment to Korea.  At this time he advised his assignment officer that based on the medical condition of his son he would be unable to go overseas at that time.  On 30 April 1980, the assignment officer after reevaluating the situation advised the applicant that given the Army’s current requirements it was necessary that he accept the assignment to Korea.

On 2 May 1980, the applicant voluntarily requested that he be relieved from active duty 31 May 1980, and that he be placed on the retired list on 1 June 1980.  In his request the applicant stated, given the medical condition of his son, his acceptance of an overseas assignment at that point would result in his abdicating his responsibility as a father.  He further stated that given this situation the best course of action for the U.S. Army and him would be his retirement.  The applicant also acknowledged that he understood his retirement would be in the rank and pay grade of Lieutenant Colonel/O-5 (LTC/0-5).

On 15 May 1980, Department of the Army approved the applicant’s request for retirement, in the best interest of the Army, as an exception to policy.  The approval endorsement stated that 19 months of the applicant’s promotion obligation was waived to permit his voluntary retirement on 31 May 1980, and that he would be retired in the rank and pay grade of LTC/0-5.

Accordingly, on 31 May 1980, the applicant was separated from active duty, under the provisions of Title 10 USC Section 3911, by reason required service for retirement after completing 21 years, 5 months, and 22 days of active military service.

Title 10 of the United States Code, Section 1370, in effect, at the time mandated that in order for a commissioned officer of the Army to be eligible for voluntary retirement they must have served on active duty in that grade for not less than two years.  It further specified that commissioned officers would be retired in the highest grade in which they served on active duty satisfactorily for not less than six months.  Section 3964 of Title 10 entitles Regular Army warrant officers and enlisted personnel who are retired with less than 30 years of active service, 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 they served on active duty satisfactorily.  However, these provisions do not apply to commissioned officers.

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’s placement on the retired list as a LTC/0-5 was proper under the provisions of law and regulation.  Further, the Board found that the applicant does not qualify for advancement on the retired list, under the provisions of Title 10 of the United States Code, Section 3964, because this provision of law does not apply to commissioned officers of the Army.

2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  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

__mkp___  ___jpi ___  ___clg__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012974	
SUFFIX		
RECON		
DATE BOARDED	1999/09/22	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.		
3.		
4.		
5.		
6.