MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:           15 September l999                
	DOCKET NUMBER:   AR1998013520

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman		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, retirement in the rank of staff sergeant (SSG), pay grade E-6, effective 31 August l973.  

APPLICANT STATES:  In essence that he should not have been retired in the rank of sergeant (SGT) pay grade E-5.  He essentially claims that he does not understand why he was retired at a rank below the highest rank he held.  He submits copies of DD Forms 2l4 (Report of Transfer or Discharge) issued to him on 7 June l970 with the rank of SSG, and one issued on 31 August l973 with the rank of SGT.  He also submits a promotion order to the rank of SSG, dated 
July l968, a copy of his retirement order, date 18 July l973 and a 
DA Form 3713 (Data for Retired Pay), these latter two documents showing his retirement rank as SGT.  

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

He had 2 years honorable service, in an active status, in the Army of United States (AUS) from 16 April 1953 through 8 April l955, as a Heavy Weapons Infantryman.  This was followed by almost 4 months inactive service in the Army Reserve (USAR) from 9 April-1 August l955.  On 2 August l955, he enlisted in the Regular Army and his service thereafter was honorable until he was released from active duty on 31 August l973, and was placed on the retired list, with the rank of SGT on 1 September l973.  The highest rank he held was SSG from 
25 July l968 through 16 October l970.  He served primarily as a heavy vehicle driver and a truck master.  He served overseas in Germany (three assignments), in Korea and the Republic of Vietnam (two assignments).  

His record contains evidence of six nonjudicial punishments (NJP’s), under the provision of Article l5, Uniform Code of Military Justice.  On 28 May l964, while serving in the rank of SGT, he was punished for disrespect to a noncommissioned officer; on 12 July 1965 and 3 February l967, still serving with the rank of SGT, for being drunk on duty;  on 5 July l970, while serving as a SSG, for being drunk on duty;  on l7 October l970, for unknown reasons, which resulted in his reduction from the rank of SSG to the rank of SGT; and on 
9 November l970, while serving as a SGT, for being drunk on duty.  

On 3 October l972, the applicant, while serving in the rank of SGT, voluntarily requested retirement effective 31 August l973.  His request was approved.  

On 31 August l973, the applicant was released from active duty in the rank of SGT, for the purpose of retirement.  He was transferred to the USAR Control Group (Retired).  On 1 September l973, he was placed on the Retired List, with the rank of SGT.  He was credited with 20 years and 20 days active service and 3 months and 23 days inactive service.  His DA Form 3713 shows that the authority for his retirement was Title 10, United States Code, Section 3914, and the statute authorizing his retirement rank was Title 10, United States Code, Section 3961.  However, his DA Form 3713 shows that the highest rank he held was SSG.  

On 8 March l972, this Board denied his request for voiding of an NJP he received on l7 October l970 while in the RVN, whereby he was reduced from the rank of SSG to SGT, essentially for missing duty for 24 hours in the RVN.  He claimed that he was ill, had gone to the hospital and did not know he was still on duty.

On 7 September l999, the Army Grade Determination Review Board (AGDRB) advanced the applicant on the retired list to the rank of SSG, under the provisions of Title 10, United States Code, Section 3964, effective 1 September l983.  That board’s determination has been provided to the Defense Finance and Accounting Service for appropriate pay action.  

Title l0, United States Code, Section 3914, states in pertinent part, that soldiers with more than 20, but less than 30 years active service may be retired by the Secretary of the service concerned upon their request.  

Title 10, United States Code, Section 3961(b), states, in pertinent part,  that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who is retiring for other than a disability retirement, will be retired in the regular or reserve grade that he (or she) holds on the date of his (her) retirement. 

Title 10, United States Code, Section 3964 provides, in pertinent part, that an enlisted soldier or warrant officer, who retired with less than 30 years service, will be eligible for advancement on the retired list to the highest rank in which he or she satisfactorily served, as determined by the Secretary of the service concerned, upon completion of 30 years combined active and retired service.  

In accordance with Army Regulation 15-80, the AGDRB makes determinations on behalf of the Secretary of the Army for advancement of soldiers on the Retired List under the provisions of Title l0, United States Code, Section 3964.  

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.  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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant had been reduced by NJP action in October l970 from the rank of SSG to SGT.  He was still serving in the rank of SGT at the time of his retirement.  Therefore, he was properly placed on the retired list with the rank of SGT by operation of law.

3.  The AGDRB has seen fit to advance the applicant on the retired list to the rank of SSG, the highest rank in which he satisfactorily served effective at the completion of a combined 30 years of active and retired service.

4.  The applicant has failed to provide any evidence of error or injustice in the retirement process as it pertains to his retirement rank and the subsequent action by the Department to advance him on the retired list effective 1 September l983.

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

__JA____  __TSK___  __KAN__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013520	
SUFFIX		
RECON		
DATE BOARDED	19990915	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	136.00	
2.	131.09	
3.	131.04	
4.		
5.		
6.