MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 August 2000
	DOCKET NUMBER:   AR2000036301

	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. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 he be advanced to the rank and pay grade of Master Sergeant/E-8 (MSG/E-8) on the Retired List.

APPLICANT STATES:  In effect, that he should be advanced to the rank and grade of MSG/E-8 on the Retired List based on his being selected for promotion to that rank and pay grade.

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

On 31 October 1983, he retired from the Regular Army, in the rank of Sergeant First Class/E-7 (SFC/E-7), after completing 20 years and 23 days of active military service. 

On 1 August 1983, Orders Number 84-38, was issued by the Army Military Personnel Center (MILPERCEN).  This order provided the authority for the applicant’s promotion to MSG/E-8, effective 1 September 1983, with a date of rank of 10 August 1983.  

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of the Department of the Army (DA) Form 2339 (Application for Voluntary Retirement), submitted by the applicant on 1 August 1983.  In this request, the applicant requested retirement in the rank of SFC/E-7 on 31 October 1983.

On 23 August 1983, the applicant completed a written declination of his promotion to MSG/E-8.  In this declination statement he indicated that he was exercising his option to decline his promotion to MSG/E-8 in order to proceed with his scheduled retirement on 1 November 1983. 

On 31 October 1983, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Certificate of Release or Discharge From Active Duty), which was authenticated by the applicant with his signature.  This form shows that he was separated, under the provisions of Title 10, United States Code, section 3914, by reason of length of service retirement.  In addition, it verifies that he was separated and placed on the Retired List in the rank and pay grade of SFC/E-7.  

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel and contained guidance on the declination of promotions to pay grades E-7, E-8, and E-9.  It stated, in pertinent part, that a member could decline promotion by submitting a written request to DA through command channels within 15 days of receiving official notification of the promotion.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961). 

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and satisfactorily served in while on active duty.

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.  The evidence or record shows that the revocation of the applicant’s promotion to MSG/E-8 was accomplished in accordance with the applicable regulations in effect at the time.  In addition, the action was taken at the applicant’s own request based on his stated desire to process a request for retirement.

2.  By law and regulation, advancement of soldiers on the Retired List is only authorized when a member has held and satisfactorily served in that higher pay grade while on active duty.  The applicant never accepted his promotion to MSG/E-8 and formally declined the promotion under the applicable provisions of the regulation.  In the opinion of the Board, this constituted a refusal to accept the responsibility to serve on active duty in that rank and pay grade.  Therefore, the Board finds the applicant performed no satisfactory active duty service in the rank and pay grade of MSG/E-8 and as a result there is no basis for relief in this case. 

3.  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 this requirement.

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

___gp___  ___alr___  __clg ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036301	
SUFFIX		
RECON		
DATE BOARDED	2000/08/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1983/10/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.