MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 May 2000
	DOCKET NUMBER:   AR2000035509

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		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, that his records be corrected to show that he was retired in the pay grade of E-7. 

APPLICANT STATES:  That he was promoted to the rank of master sergeant  (E-7) in 1952 while stationed with the 98TH Infantry Division.  In 1953 he entered active duty and was administratively reduced to the pay grade of E-5.  He goes on to state that he was promoted back to the pay grade of E-6 in 1958 and should have been separated in the highest grade he held.  In support of his application he provides a copy of his report of separation (DD Form 214) and his retirement orders.

EVIDENCE OF RECORD:  The applicant's military records were apparently destroyed in the 1973 fire at the National Personnel Center in St. Louis, Missouri which destroyed millions of service records.  However, reconstructed records, although limited, show:

The applicant entered active duty on 13 January 1940 and served until he was honorably discharged in the rank of sergeant (grade 4) on 8 November 1945.  He enlisted in the Enlisted Reserve Corps (now known as the USAR) for a period of 3 years in the rank of sergeant and entered active duty on 14 April 1950.  He was promoted to the rank of sergeant first class (E-6) on 15 April 1951 while serving in Korea from 23 September 1950 to 25 July 1951, was released from active duty (REFRAD) on 4 September 1951 and was returned to the Enlisted Reserve Corps (ERC). 

He remained in the ERC and was promoted to the rank of M/SGT (E-7).  While serving in the ERC he submitted an application for active duty, which was approved on 24 November 1954.  His orders to active duty directed that he be reduced to the rank of sergeant (E-5) without prejudice, with a date of rank of 14 April 1950 and that he was being ordered to active duty with his consent for a period of 2 years.  The orders cited a Department of the Army message number 524544 as the authority for the reduction in grade. 

The applicant entered active duty on 24 November 1954 and reenlisted in the Regular Army on 17 August 1955 for a period of 6 years.  He was promoted to the rank of staff sergeant (SSGT – E-6) on 5 August 1958.

On 1 May 1961, while still on active duty, the applicant applied to this Board to have his rank of MSGT/E-7 restored.  The Board opined, at that time, that he had voluntarily accepted the reduction in rank as a condition of entering active duty and that had he not been willing to accept those conditions he could have withdrawn his request before the effective date.  The Board denied his request on 10 August 1961.

He continued to serve on active duty until 3 April 1964 when he was honorably retired in the pay grade of E-6 by reason of permanent physical disability.  He had served 16 years, 3 months, and 25 days of total active service.

Department of the Army message number 524544 provided, in effect, that enlisted members of the Reserve Components in grades E-6 and E-7 who desire to apply for active duty may request voluntary reduction to the grade of E-5, without prejudice, and upon application will be accepted in grade E-5.

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held while serving on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

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 has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The provisions of law which allow for advancement of enlisted personnel to the highest grade held requires that the highest grade held must be a grade that was held while serving on active duty.  The applicant held the rank of MSGT/E-7 while serving in the ERC, not on active duty.  He did not advance past the pay grade of E-6 while on active duty and therefore is not entitled to further advancement.

3.  The Board also finds that the applicant voluntarily accepted the conditions of a reduction in grade when he entered active duty in the pay grade of E-5.  Had he not agreed with the terms at the time he had the option to withdraw his request.  However, the available evidence of record indicates that he waited until 6 years after he entered active duty to request that his rank be restored.  Accordingly, the Board finds that the applicant was properly reduced in grade in accordance with the applicable policies in effect at the time and that there is no evidence of any violations of the applicant’s rights.

4.  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

__ao____  ___le ___  ___vbc__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035509	
SUFFIX		
RECON		
DATE BOARDED	2000/05/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400/HI GRD HELD	
2.		
3.		
4.		
5.		
6.