MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 May 2000
	DOCKET NUMBER:   AR2000036155

	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. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		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 rank be upgraded from sergeant first class/E-7 (SFC) to master sergeant/E-8 (MSG) on the retired list. 

APPLICANT STATES:  In effect, that at the time he was separated he had to be discharged in the rank of SFC because he was in an Active Guard Reserve (AGR) status.  He indicates that he was told that he could request an upgrade to MSG after he had completed 30 years of total service.  He completed 30 years of total service on 30 August 1998.  In support of his application, he has provided the enclosed promotion order, which shows that he was promoted to MSG on 
27 October 1982; and a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), which shows that he was transferred to the Retired Reserve in the rank of SFC and that his date of rank to SFC was 
13 January 1984.

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

On 30 September 1994, the applicant was discharged from the Army National Guard (ARNG) and transferred to the Retired Reserve, in the rank of SFC.  The record contains a NGB Form 22, which shows that at this time the applicant had completed a total of 26 years, 1 month, and 1 day of total service for pay and that of this total service only 5 years, 7 months, and 7 days had been served as active duty service.  This document also verified the applicant’s date of birth as 16 August 1950. 

On 7 June 1994, Orders 158-046 was published by the Office of the Adjutant General, Jefferson City, Missouri.  This order honorably discharged the applicant from the ARNG and assigned him to the Retired Reserve, in the rank of SFC, effective 30 September 1994.  This action was based on the applicant’s eligibility for a non-regular Reserve retirement based on age and service.  This entitled the applicant to begin receiving retired pay on 16 August 2010, which is when he reaches the age of 60.  There is no indication that the applicant was eligible to retire based on the active service he had completed under any length of service provisions of the law. 

Department of Defense Financial Management Regulation (DODFMR) volume 7B, in effect at the time of the applicant’s placement on the Retired List, provided the policy and procedures for Retired pay.  Paragraph 10108 (age and service retirement of non-regular members) outlined the criteria for the retirement of Reserve members and stated, in pertinent part, that a member of the ARNG who is entitled to Retired pay for non-regular service may receive retired pay upon application if he or she is at least 60 years of age.  Paragraph 10141 (general determinations) stated, in pertinent part, that Reserve members who retire, other than for disability, will retire in the Reserve grade they hold on the date of retirement.  

Chapter 5 of the DODFMR, in effect at the time, provided for advancement on the Retired list.  However, at the time these provisions applied to only warrant officers and enlisted members of the Regular Army and allowed them to be advanced to the highest rank in which they successfully served on active duty, when their active service plus their service on the Retired list totaled 30 years.  There were no provisions in effect at the time of the applicant’s transfer to the Retired Reserve that allowed for the advancement of non-regular (Reserve) members who retired under age and service provisions of the law.

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.  That the applicant was properly discharged from the ARNG and transferred to the Retired Reserve in the rank of SFC in accordance with applicable laws and regulations in effect at the time.  

2.  There are no provisions for advancing the applicant on the Retired List based on his having been transferred to the Retired Reserve as a result of attaining retirement eligibility under non-regular member age and service provisions of the law.  At the time of his transfer to the Retired Reserve there were only provisions for advancing warrant officers and enlisted members of the Regular Army on the retired list after they had a combined total of active service and time on the Retired List which equaled 30 years of military service.  

3.  Additionally, as a non-regular age and service retiree, the applicant’s entitlement to retired pay does not begin until he reaches the age of 60, on 
16 August 2010.  Therefore any decision in regard to the rank in which he will ultimately receive retired pay will correctly be addressed by Army Reserve Personnel Command (ARPERSCOM) officials at the time he makes application to them to receive retired pay.  Any application to this Board in regard to his retired grade should only be made if the applicant believes and can show that there is an incorrect determination made at that time.  Thus, the Board concludes that there is no basis for granting the relief requested at this time. 

4.  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.

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

___ewl __  __klw ___  __eja ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036155	
SUFFIX		
RECON		
DATE BOARDED	2000/05/25	
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.  319	131.0900	
2.		
3.		
4.		
5.		
6.