MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  29 August 2000
	DOCKET NUMBER:  AR2000036290

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Charles Gainer		Member	
	Mr. Roger W. Able		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 his retirement pay grade be changed to E-8.

APPLICANT STATES:  In effect, that he was promoted to pay grade E-8 on 
1 May 1995 and he retired on 31 May 1995.  He supplies a copy of his pay grade E-8 promotion order and his Certificate of Promotion.

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

That he enlisted in the Regular Army on 17 January 1975.  His areas of military occupation were in communications, and supply and services.  Over his career, he advanced in rank to Sergeant First Class (SFC), pay grade E-7, on 1 July 1990.

On 9 February 1995, while stationed at Fort Monmouth, he applied for voluntary retirement in lieu of reassignment for which he had received an alert on 
16 December 1994.  His request for retirement was approved and Fort Monmouth issued retirement orders on 16 February 1995 specifying a retirement effective date of 31 May 1995 and his retirement rank as SFC, his current rank.  He retired with 20 years, 3 months, and 20 days active service.

An advisory opinion from the U. S. Total Army Personnel Command (PERSCOM) states that the applicant was selected for promotion by the 1994 Master Sergeant (MSG) Selection Board.  Promotion orders were published on 13 April 1995 promoting the applicant to MSG on 1 May 1995.  However, PERSCOM had not received a copy of his 16 February 1995 retirement orders and erroneously issued the promotion order for the applicant.  Soldiers with approved retirements are placed in a nonpromotable status and are administratively removed from the promotion list.  The fact that the promotion order was erroneously issued does not negate the applicant’s nonpromotable status.  There is no evidence that the applicant served in the rank of MSG prior to retirement.

According to Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-10 (Nonpromotable Status), a soldier is in a nonpromotable status if their voluntary retirement application has been approved.  Paragraph 4-8 (Service Obligation) shows that a soldier promoted to the grade of MSG will incur a 2 year service obligation which must be satisfied before the soldier can apply for voluntary retirement.  Paragraph 1-17 (Erroneous Promotions and De Facto Status) shows that erroneous promotions will be revoked and 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 allowances received at the higher rank when pay at the high grade was received.

The applicant was given 4 months opportunity to rebut the advisory opinion but no rebuttal was received.
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 applicant was erroneously promoted to MSG and is not entitled to the retirement rank of MSG.  His approved voluntary retirement request placed him in a nonpromotable status and he was not promotable since he could not and did not satisfy the promotion service obligation.

2.  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

__jm___  ___cg__  __ra___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036290	
SUFFIX		
RECON		
DATE BOARDED	20000829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.131.09	Advancement in Grade	
2.		
3.		
4.		
5.		
6.