MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 August 2000
	DOCKET NUMBER:   AR2000036517

	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. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		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 was not retired at the highest rank he held and would like to be advanced on the Retired List as authorized by 
Title 10 of the United States Code, section 3964 (10 USC 3964).  He indicates that he worked hard for over 20 years to make the rank of MSG/E-8 and but was unable to complete the 2 year active duty service obligation that came with the promotion because of health reasons.  He claims to have retired based on his suffering from diabetes and is currently rated at 80 percent disabled by the Department of Veterans Affairs (VA).  

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

On 28 August 1979, he retired from the Regular Army, in the rank of Sergeant First Class/E-7 (SFC/E7), after completing a total of 20 years, 7 months, and 
20 days of active military service. 

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that on 
28 November 1969, he was promoted to the rank and pay grade of SFC/E-7, which is the highest rank he held while on active duty. 

On 2 October 1978, Department of the Army (DA) Order Number 168-1 was issued by the Military Personnel Center (MILPERCEN).  This order provided the authority for the applicant’s promotion to the rank and pay grade of Master Sergeant/E-8 (MSG/E-8, effective 1 November 1978.  

However, the record contains a letter submitted by the applicant on 9 November 1978.  In this letter to his commander the applicant formally declined his promotion to MSG/E-8.  He cited as his reason for taking the declination action as his intent to retire in July 1979.  

Subsequent to this declination action, in June 1979 the applicant was assigned to the Medical Holding Detachment, Fort Ord, California as a patient.  He remained in this patient status until he was REFRAD on 28 August 1979.

The record contains a properly constituted DD Form 214 (Report of Separation From Active Duty), signed by the applicant.  This form shows that he was separated, under the provisions of chapter 5, Army Regulation 635-40, by reason of disability-permanent.  It further, verifies that he separated and was placed on the Permanent Disability Retired List (PDRL) 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.  Paragraph 7-45 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 within 15 days of official notification or the effective date of promotion.

Title 10 of the United States Code, section 1202 (10 USC 1202) provides the legal authority for the retirement of members determined to be unfit to perform duties of their office, grade, rank, or rating because of physical disability incurred while entitled to basic pay.  The law requires, in pertinent part, that the disability determination be based upon accepted medical principles, the disability is of a permanent nature and stable, and the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination. 

Title 10 of the United States Code, section 1372 (10 USC 1372) provides the legal authority for the grade on retirement of members retiring for physical disability.  It states, in pertinent part, that a member is entitled to the grade equivalent to the highest of the following: the grade or rank in which he is serving on the date when his name is placed Retired List.  It does allow for granting the highest rank in which he served satisfactorily or the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

Title 10 of the United States Code, section 3964 provides the legal authority for the advancement of members on the Retired List.  It states, in pertinent part, that 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 applicant declined his promotion to MSG/E-8 on 9 November 1978.  This promotion declination action and the revocation of his promotion were accomplished in accordance with the applicable regulations in effect at the time.  In addition, the action was taken well before he became a patient at the Medical Holding Detachment at Fort Ord and prior to his being processed for a disability retirement. 

3.  In the opinion of the Board, the applicant’s promotion declination constituted a refusal to accept the responsibility to serve on active duty in the rank and pay grade of MSG/E-8.  Therefore, the Board determined the applicant did not satisfactorily hold or serve in the higher grade while on active duty and that his advancement on the Retired List is not appropriate at this time. 

4.  Further, since the applicant declined his promotion before beginning disability processing, and given the lack of evidence to suggest that he ever satisfactorily served on active duty as MSG/E-8 or that he was in a promotable status, pending promotion to MSG/E-8, prior to his being placed on the PDRL, the Board finds no evidentiary basis to support granting the applicant entitlement, under the provisions of 10 USC 1372, to placement on the PDRL and retired pay as a MSG/E-8. 

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.

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

___dj ___  ___ewl __  __kak ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036517	
SUFFIX		
RECON		
DATE BOARDED	2000/08/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/adv in retirement	
2. 		
3.		
4.		
5.		
6.