MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 June 2000                   
	DOCKET NUMBER:   AR2000036537

	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	
	Mrs. Nancy Amos		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:  In effect, that he be advanced to Sergeant First Class (SFC), E-7 on the retired list.

APPLICANT STATES:  That he served as an E-7 Platoon Sergeant while only an E-6 for about 13 months while in Vietnam.  He would have been promoted to E-7 if he had only signed up for two more years.  He also served in E-7 slots at other times in his career.  Supporting evidence is as listed on the DD Form 149.

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

After having had prior service, he reenlisted in the Regular Army on 9 March 1961.  He last reenlisted on 25 March 1974 for 4 years.

The applicant came down on overseas assignment instructions in December 1976.  In January 1977 he was counseled concerning his refusal to take action
to meet the length of service requirements.  On 13 January 1977, he made a statement that he refused to meet those requirements because he planned on retiring at his expiration term of service, which put him over 20 years service.

On 18 April 1977, the applicant requested withdrawal of his letter of declination.  He stated it was not explained to him at his levy briefing that because he was on levy he could extend or reenlist for up to 23 years of service so he was under the impression he had to get out at 20 years.  He requested the letter of declination be removed “for the purpose of extending or reenlisting which ever one I choose, for the purpose of being promotied (sic) to the grade of E7.”  On 2 June 1977, the U. S. Army Enlistment Eligibility Activity disapproved the applicant’s request but authorized him to extend his enlistment for one month to attain retirement eligibility.

Orders 73-1, U. S. Army Military Personnel Center dated 1 September 1977 promoted the applicant to SFC effective 1 October 1977.  The orders are annotated “Submitted Ltr of declination.”  Orders 87-1, U. S. Army Military Personnel Center dated 30 September 1977 revoked those orders.

On 15 November 1977, the applicant submitted a request for retirement.  His DA Form 2339, Application for Voluntary Retirement shows his current grade as Staff Sergeant (SSG), E-6.

On 1 April 1978, the applicant was retired in the rank and grade of SSG, E-6 after completing 20 years and 21 days of creditable active service.

Title 10, U. S. Code, chapter 369 governs retired grades.  Section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily. 
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 this requirement.

2.  The Board appreciates the applicant’s serving in E-7 positions while only an E-6.  However, advancement on the retired list can only be considered when a soldier served in a higher grade that would have qualified him for retirement, receipt of retired pay, or separation for physical disability.  Since the applicant declined promotion to SFC, he was never qualified for retirement as an E-7.  Therefore, it is not appropriate to consider him for advancement on the retired list to that grade.

3.  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

__jhl___  __jns___  __mhm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036537	
SUFFIX		
RECON		
DATE BOARDED	20000629	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.09	
2.		
3.		
4.		
5.		
6.