MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 June 2000
	DOCKET NUMBER:   AR2000036390

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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:  Advancement on the Retired list to the pay grade of E-9.

APPLICANT STATES:  In effect, that he served in an E-9 position, was promoted to the pay grade of E-9 prior to his retirement and that his retirement certificate and report of separation (DD Form 214) shows he retired in the pay grade of E-9. However, he is being paid as an E-8. 

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

On 15 September 1983, while serving at Fort Sheridan, Illinois in the pay grade of E-8, the applicant was notified that he had been selected for promotion to the pay grade of E-9.

On 28 October 1983 he was transferred to Fort Hamilton, New York to serve as a Recruiting Battalion Sergeant Major (while still serving in the pay grade of E-8).  

He submitted an Application for Voluntary Retirement (DA Form 2339) on 3 January 1984 requesting an effective date of retirement of 1 November 1984.  He also indicated that he planned to take terminal leave effective 2 August 1984. His request was approved and orders were published on 23 July 1984 authorizing him to retire in the pay grade of E-8 effective 31 October 1984. 

On 19 July 1984 orders were published by the Department of the Army Military Personnel Center (MILPERCEN) promoting the applicant to the pay grade of E-9 effective 1 September 1984.  The orders specified that the promotion would not be valid if the applicant was not in a promotable status on the effective date of promotion and that acceptance of the promotion automatically incurred a 2-year service obligation prior to nondisability retirement.

The applicant was honorably released from active duty in the pay grade of E-8 on 31 October 1984 and was placed on the Retired list effective 1 November 1984.  He had served 20 years and 18 days of total active service.  At the time of his retirement he was issued a Retirement Certificate (DA Form 363A) indicating that he was retired in the rank of Sergeant Major (SGM); however, his DD Form 214 indicated at the time of retirement that he was separated in the pay grade of E-8.

On 26 November 1984 the MILPERCEN issued order number 145-14, which  revoked the applicant’s promotion due to an approved retirement.

On 16 May 1988 the applicant submitted a letter to the Army Reserve Personnel Center (ARPERCEN) requesting that his DD Form 214 be corrected to show that he was separated in the pay grade of E-9.  In support of his application he submitted a copy of his Retirement Certificate and a copy of his promotion orders.  The ARPERCEN (now know as ARPERSCOM) issued a correction of his DD Form 214 in the form of a DD Form 215 showing that his rank and pay grade at the time of retirement was SGM/E-9 with a date of rank of 1 September 1984.

On 20 November 1994 the applicant submitted a request in the form of a letter to the Retirement Service Office at the ARPERCEN requesting that he be advanced on the Retired list based on his having served in a SGM position for 2 years.  He acknowledged that he had not served the required years of service for promotion prior to his elected retirement but contended that his service in the position should meet the requirements for satisfactory service in the higher grade.  Officials at the ARPERCEN informed the applicant on 14 March 1995 that he was not eligible for advancement on the Retired list. 

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completing 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

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 properly advanced to and satisfactorily served in a higher grade prior to his being placed on the Retired list.  The applicant has not submitted evidence with his application, and the evidence of record does not contain any evidence to show that he was properly promoted to a higher grade than he held at the time of retirement.  Therefore, there is no basis to promote him to a higher grade or to advance him on the Retired list.

3.  Furthermore, the applicant was in a non-promotable status based on his approved retirement and there is no indication that he requested to withdraw his retirement in order to accept the promotion.  He clearly was not eligible to be promoted to the pay grade of E-9 nor was he entitled to have his records show that he was promoted to the pay grade of E-9 because he was not eligible for promotion until such time as he either requested and received either a withdrawal of his approved retirement or obtained a waiver of the service remaining obligation associated with the promotion.  Accordingly, his promotion orders were properly revoked; an action which negated his erroneous promotion to the pay grade of E-9.  Therefore, the Board finds that he did not satisfactorily serve in the pay grade of E-9.

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

___mm__  ___jhl  __  ___js____  DENY APPLICATION

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

INDEX

CASE ID	AR2000036390	
SUFFIX		
RECON		
DATE BOARDED	2000/06/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV ON RET LIST	
2.		
3.		
4.		
5.		
6.