MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 June 2000
	DOCKET NUMBER:   AR2000036455

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Steuve		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 on the retired list to the rank of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, that he was selected for promotion to SFC/E-7 in the USAR and this promotion would have become effective on 28 April 1987.  However, because he accepted an active duty Active Guard Reserve (AGR) tour as a staff sergeant/E-6 (SSG/E-6) that began on 9 March 1987, he was not promoted.  He claims that he was told because he had been identified for promotion to SFC/E-7 in the USAR he would receive that rank when he retired but when he retired he was denied the promotion because he had never pinned it on or actually served in the grade.  He indicates that he was told he could elect not to retire and to go back in the USAR as an SFC/E-7 and try to get an AGR assignment in that rank in order to qualify for retirement as an SFC/E-7.  He concludes that in view of his honorable service he deserves the promotion and the fact that he was selected for promotion to SFC/E-7 in the USAR he deserves this advancement.  The applicant has provided the enclosed expanded statement and promotion order to SFC/E-7 in support of his application.

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

On 30 November 1995, he retired from service after completing 21 years, 
8 months, and 19 days of active military service.  At the time of his retirement the applicant held the rank and pay grade of SSG/E-6 and served in military occupational specialty 92Y30 (Unit Supply Sergeant).  

The applicant has provided a copy of an order which indicates that he would have been promoted to the rank of SFC/E-7 in the USAR effective 1 May 1987 had he not declined the promotion by accepting an Active Guard/Reserve (AGR) active duty position in the rank of SSG-E-6, which he began serving on 
22 February 1987.

The applicant’s Department of the Army (DA) Form 2-1 (Enlisted Qualification Record) indicates in block 18 (appointments and reductions) that the applicant attained the rank of SSG/E-6 on 1 June 1978.  There is no indication in the record that he ever held a higher grade while serving on active duty. 

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in records.  This form verifies that the applicant submitted his request for retirement on 26 July 1995 and that he requested a retirement date of 30 November 1995.  On 11 August 1995, the appropriate authority approved his retirement request for 30 November 1995 in the rank of SSG/E-6. 

On 30 November 1995, 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 signed by the applicant.  This document shows that the applicant was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason of sufficient service for retirement.  In addition, at the time of his REFRAD he held the rank of SSG/E-6 and had completed a total of 21 years, 8 months, and 19 days of active military service.

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) of the regulation contains guidance on the advancement of soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no provisions for advancement of individuals who held a different rank title if they were retired in the appropriate pay grade.  

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 Board did note that the applicant was selected for promotion to SFC/E-7 in the USAR and that this promotion would have been effective on 1 May 1987.  However, the record shows that the applicant declined this promotion in order to accept an AGR active duty position in the rank of SSG/E-6, which is the highest rank he in fact held while serving on active duty.

2.  The record clearly shows that the applicant never actually served above the pay grade of E-6 while on active duty.  The provisions of law and regulation only allow for advancement of soldiers on the Retired List when they have in fact satisfactorily served in a higher pay grade.  Given the applicant never served in pay grade E-7 while on active duty, advancement on the Retired List to that grade is not appropriate.  Therefore, the Board concluded that the requested relief is not warranted 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

__mkp __  __esc ___  ___jps __  DENY APPLICATION

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

INDEX

CASE ID	AR2000036455	
SUFFIX		
RECON		
DATE BOARDED	2000/06/07	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1995/11/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.		
3.		
4.		
5.		
6.