MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 May 2000
	DOCKET NUMBER:   AR2000036379

	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. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 promoted to the pay grade of E-8 and advanced on the Retired list in that pay grade.

APPLICANT STATES:  In effect, that he had served in an E-8 position while on active duty and was selected for promotion to the pay grade of E-8 with a sequence number of 1384.  However, when he requested to withdraw his retirement application it was unjustly denied and he was required to retire in the pay grade of E-7.
 
EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted on 24 August 1960 and remained on active duty through a series of continuous reenlistments.  He served as a medical specialist and was promoted to the pay grade of E-7 on 16 April 1976.

The applicant served as a medical holding company first sergeant in Hawaii until he was transferred to Fort Knox, Kentucky on 4 May 1981 for duty as a platoon sergeant (E-7).

On 19 August 1981 the applicant submitted a request for voluntary retirement due to length of service with an effective date of 1 May 1982.  As part of his request he acknowledged that he was familiar with the provisions of Army Regulation 635-200 pertaining to the withdrawal of his application for retirement, once it had been accepted by the retirement approval authority.  His request was approved on 21 August 1981.

On 2 February 1982 the applicant submitted a request to withdraw his application for retirement based on his being selected for promotion to the pay grade of E-8 and assigned a sequence number of 1384.

His request was disapproved on 16 February 1982 by the Department of the Army Military Personnel Center (now know as PERSCOM) Retirements Branch.  The denial of his request was based on the instructions contained in the 1982  Master Sergeant Promotion Board which indicated that personnel with an approved retirement effective on or before 1 October 1982 would not be considered for promotion.  Soldiers whose records were erroneously sent before the board and were subsequently selected would have their names removed from the list.

Accordingly, the applicant was honorably released from active duty on 30 April 1982 and was placed on the Retired list in the pay grade of E-7 effective 1 May 1982.  He had served 21 years, 8 months, and 7 days of total active service.

In the processing of this case a staff member contacted officials at the PERSCOM Promotions Branch to determine when the 1982 Master Sergeant Promotion Board convened.  Officials at that agency indicated that the board convened on 8 September 1981 and adjourned on 27 September 1981.

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired) and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired list in behalf of the Secretary, for those who have attained 30 years of service.

Army Regulation 635-200 serves as the authority for enlisted retirements.  The regulation in effect at the time provided, in effect, that an eligible member’s application for retirement will not be withdrawn unless it is established that retaining the members on active duty will be for the convenience and best interest of the government, or will prevent an extreme hardship to the member or immediate family.  The hardship must have been unforseen at the time of application.

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.  In order to be advanced to a higher grade on the Retired list, the applicant must have at some time been advanced to and served in a higher grade prior to his being placed on the Retired list and must have a combined total of 30 years of service (active and/or service on the Retired list).  The applicant did not serve on active duty in the rank of E-8 and therefore is not eligible for advancement to that grade on the Retired list. 

3.  The Board notes that the applicant submitted his request for retirement and that it was approved before the master sergeant promotion board convened.  Therefore, he was in fact not eligible for consideration for promotion and his request to withdraw his application was properly denied. 

4.  The Board also notes that the applicant acknowledged that he understood the provisions for withdrawing his application at the time he submitted his request for retirement and was most likely aware that the master sergeant promotion board was due to convene shortly, because it routinely occurs about the same time yearly.  Therefore, given he indicated that he was aware of the regulatory provisions at the time, and since he provided no evidence to show otherwise, there was no basis to grant his request at the time.

5.  In view of the foregoing, there is no basis for granting the applicant's current 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

__cmf ___  ___fe ___  ___rjw __  DENY APPLICATION

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

INDEX

CASE ID	AR2000036379	
SUFFIX		
RECON		
DATE BOARDED	2000/05/17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV IN GRD	
2.  306	129.0400/HIGH GRD HELD	
3.		
4.		
5.		
6.