MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:          23 June 1999        
	DOCKET NUMBER:   AR1999022261

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		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, promotion to pay grade E-9 and reinstatement to active duty, or sufficient constructive credit, to enable her to be retired in that pay grade.

APPLICANT STATES:  Via counsel, that the applicant submitted an application for retirement just prior to the release of the 1994 E-9 promotion selection.  He notes that had she known she had been selected for promotion she would not have submitted her retirement application.  Counsel states, that immediately upon learning that she had been selected for promotion she initiated action to withdraw her retirement application.  However, in spite of the fact that her entire chain of command supported withdrawal of the retirement application the approving authority denied her request.

Counsel states, in effect, that orders promoting the applicant to pay grade E-9 were published by Department of the Army on 9 January 1995 and that the applicant subsequently “pinned on her rank.”  He contends that her “appointment to the rank of SGM constituted an affirmative de facto decision by DA that she was eligible for appointment and that the interest of the Army was met by her appointment.”  He states there “was no acceptable rationale provided for the reversal in the decision regarding her promotion status….”  He notes that the “withdrawal of her retirement application is permitted by regulation, as a hardship and for the interest of the Army, and both grounds should have been sufficient to authorize the withdrawal.”  Counsel maintains that her request to withdraw her retirement application in order to be promoted to E-9 was denied because “there appeared to have been an overstaff of SGM currently on active duty….”  He also notes that the applicant “was misinformed as to a material fact affecting her decision to submit her retirement, and consequently, there was sufficient grounds establish[ed] to justify the withdrawal of her retirement request in the best interest of the Army.”

Counsel concludes that the applicant’s retirement decision was not made with knowledge that the “promotion board had approved her for the rank of SGM” and that clearly had she known, “it would have caused her to forego submission of the retirement application.”

In support of her request counsel submits copies of documents associated with her retirement applications, promotion to SGM, and her request for withdrawal of her retirement, all of which were contained in her military personnel file.

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

She entered active duty on 31 July 1973 and by May 1989 had risen to the rank of master sergeant (pay grade E-8).

On 30 June 1989 the applicant reenlisted for a period of 6 years and on 
23 June 1992 requested a 2-month extension to that reenlistment in order to complete a 3-year tour of duty in Europe.  As a result of the reenlistment and extension the applicant’s scheduled separation (ETS) date was established as 
29 August 1995.

In July 1992 the applicant arrived overseas and her scheduled date of departure from Europe (DEROS) was established in July 1995 which enabled her to serve the 36 month “with-dependents” tour.

She was considered, but not selected, for promotion for Sergeant Major in 1993.

The applicant submitted a request for voluntary retirement in February 1994 as an exception to policy.  She requested a retirement date of 1 July 1994, a year prior to her scheduled DEROS date.  Her request was denied.

The 1994 SGM board convened on 13 September 1994 and on 31 October 1994 the applicant again submitted a request for voluntary retirement.  Her requested retirement date was 1 August 1995, which would have allowed her to complete her overseas tour.  Her request was approved and orders announcing her retirement were published on 15 November 1994.

On 8 December 1994 she was officially notified of her selection for promotion to pay grade E-9 and immediately initiated a request to withdraw her retirement application.  Her request was processed through her chain of command and forwarded to the Commander, Total Army Personnel Command (PERSCOM) by the U.S. Information Systems Command at Fort Huachuca, Arizona for final action on 20 January 1995.  Notations on documents from the Total Army Personnel Command indicate the action was received at PERSCOM on 26 or 27 January 1995, almost 20 days after orders promoting the applicant to E-9 were published by Department of the Army.

Orders announcing the applicant’s promotion were published on 9 January 1995 indicating the applicant was be promoted to SGM effective 1 February 1995.  The promotion orders clearly state the “promotion is not valid and will be revoked if the soldier concerned is not in a promotable status on the effective date of promotion.”

The applicant’s request to withdraw her retirement application was denied “by order of the Secretary of the Army” on 1 February 1995 and on 7 February 1995 her name was administratively removed from the E-9 promotion list.  There is no indication the applicant ever received pay at the higher grade.

In June 1995 the applicant requested that her August 1995 retirement date be changed to 1 September 1995 in order for her properly prepare for retirement.  She noted in her request that she “incurred significant delays in achieving timely transition processing due to events surrounding an erroneous promotion on 
1 February 1995.  Her request was approved and on 31 August 1995 the applicant was released from active duty and her name placed on the retired rolls effective 1 September 1995.

An advisory opinion (COPY ATTACHED), provided by the Total Army Personnel Command during the processing of this application notes that prior to 1 June 1994 if a soldier had submitted a request for voluntary retirement and the request was approved after the convening date of a promotion board, the soldier was authorized to request withdrawal of the retirement to accept promotion.  However, effective 1 June 1994 the governing regulation (AR 600-8-19) was amended to reflect that soldiers with approved retirements (regardless of the approval date) would be administratively removed from the promotion list.  Although Army Regulation 635-200, which governs the processing of voluntary retirement applications, allows individuals to request withdrawal of approved retirement applications for “hardship reasons” such individuals do not retain promotable status and would have to recompete in the next regularly scheduled promotion board.  The applicant was provided a copy of the advisory opinion in May 1999 and given an opportunity to comment.  She did not respond.

A statement concerning the administrative removal of the names of soldiers from the E-9 promotion list, who had an approved retirement date, was included in the December 1994 Department of the Army memorandum announcing the E-9 selection list.

Army Regulation 600-8-19 states that when a soldier has been erroneously promoted, a determination of de facto status may be made only to allow the soldier to keep any pay and allowance received at the higher grade.  It also states that soldiers promoted to the grade of E-9 incur a two-year service obligation prior to being allowed to retire voluntarily.

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

1.  The evidence confirms the applicant had an approved retirement application in place at the time orders were published promoting her to pay grade E-9.  As such she would have been in a nonpromotable status on the effective date of promotion.  The promotion orders specifically state that the promotion is not valid and will be revoked if the soldier concerned is not in a promotable status on the effective date of promotion.  There was no deception on the part of the Army regarding an individuals entitlement to promotion merely because orders were published.

2.  The memorandum announcing her selection to E-9 contains a statement that the names of individuals with approved retirement applications, regardless of the approval date, would be administratively removed from the selection list.  The fact that orders announcing her promotion were published does not negate the fact that she was not in a promotable status.

3.  There is no evidence the applicant received any pay at the higher grade and as such there is no basis for “de facto” status.

4.  The applicant was, or based on her senior grade and more than 20 years of service, should have been well aware that she was being consider for promotion to pay grade E-9 at the time she submitted her second request for retirement. The Board contends that the fact she was subsequently selected for promotion did not create a “hardship” sufficient to justify withdrawal of her approved retirement application.  In fact, the Board notes the applicant’s desire to retire from the Army was apparently so strong she even initially initiated an application to retire as an exception to the policy.

5.  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.

6.  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__  __gfg___  __le____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022261	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990623	
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.  110.00		
2.		
3.		
4.		
5.		
6.