MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 May 2000                   
	DOCKET NUMBER:   AR2000036229

	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	
	Mrs. Nancy Amos		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:  That he be advanced on the retired list to the highest rank and grade he satisfactorily held while on active duty -- lieutenant colonel (LTC), O-5.

APPLICANT STATES:  That he received a below-the-zone promotion to LTC prior to his retirement.

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

After having had prior enlisted and warrant officer service, he entered active duty as a commissioned officer on 18 August 1969.

In 1985, the applicant requested retirement which was approved by Headquarters, Department of the Army on orders dated 15 July 1985.

On 1 August 1985, the applicant was promoted to LTC.  

On 1 April 1986, the applicant retired in the rank and grade of major, 0-4.

Title 10, U. S. code, chapter 369 governs retired grades.  Section 3961 states that the retired grade of a regular commissioned officer who retires other than for physical disability and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability or for nonregular service under chapter 1223 of this title, is determined under section 1370 of this title.  Section 1370(a)(1) provides that a commissioned officer who retires under any provision of law except chapters 61 (disability) or 1223 (non-regular service) shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily for not less than six months.  Section 1370(a)(2)(A) provides that, in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than three years.  

Title 10, U. S. code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  There is no provision for advancing a commissioned officer who retired for other than physical disability on the retired list after the completion of a specific period of service.

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 Board accepts the applicant’s contention that he served satisfactorily in the rank of LTC; however, there is no provision in law for advancing a commissioned officer on the retired list to the highest grade satisfactorily held.  

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

__eja___  __ewl___  __klw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036229	
SUFFIX		
RECON		
DATE BOARDED	20000525	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.