PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            24 May 2000
	DOCKET NUMBER:   AR2000036546

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be advanced on the retired list to the rank and pay grade of sergeant major/E-9 (SGM/E-9).

3.  The applicant provided no specific written argument.  However, he did submit, in support of his application, the enclosed copy of an academic evaluation report (AER).  This report shows that he successfully completed the sergeants major course, at the United States Army Sergeants Major Academy, on 21 July 1988.  In addition, he supplied a copy of the enclosed duty assignment order, which shows that he was placed in a SGM/E-9 position on 11 May 1990.

4.  The applicant’s military records show that on 30 September 1991, he retired from the Regular Army, in the rank of master sergeant/E-8 (MSG/E-8) while serving as the battalion sergeant major of a field artillery battalion at Fort Campbell, Kentucky. 

5. The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in his records.  This form verifies that he submitted his request for retirement on 1 October 1990 and that he requested a retirement date of 
30 September 1991.

6.  On 18 February 1991, the applicant submitted a request that he be voluntarily removed from the selection list for command sergeant major (CSM) and that he be removed from the CSM program.  This request was approved by the appropriate authority on 12 April 1991.  

7.  On 23 April 1991, the appropriate authority approved the applicant’s retirement request for 30 September 1991.  This approval action indicated that he would be retired in the rank and pay grade of MSG/E-8. 

8.  The applicant’s Department of the Army (DA) Forms 2 and  2-1 (Personnel Qualification Records-PQR) indicate that he was promoted to the rank of 
SGM/E-9 on 1 May 1991.  In addition, his Military Personnel Records Jacket (MPRJ) contains a promotion order, DA Order, Number 52-1, dated 25 March 1991, which shows that he was promoted to SGM/E-9, with an effective date of 
1 May 1991.  Further , the last entry in block 35 (Current and Previous Assignments) of the DA Form 2-1 indicates that he served as a battalion sergeant major beginning on 11 May 1990.

9.  Neither the PQR nor the MPRJ contain any derogatory information that would support a determination that the applicant’s service in the rank and pay grade of SGM/E-9 was unsatisfactory.  In addition, there is no documentation in the record to show that the applicant ever formally declined to be promoted to SGM/E-9 or that his promotion order was ever revoked.

10.  On 30 September 1991, 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 he was separated, under the provisions of title 10, United States Code, section 3914, by reason of retirement.  

11.  The DD Form 214 issued to the applicant upon his REFRAD verifies that he separated and was placed on the retired list in the rank of MSG/E8 and that at the time of his separation he had completed a total of 24 years, 10 months, and 11 days of active military service. 

12.  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).  There are no provisions for retiring an enlisted soldier in a lower rank than he holds on the date of his retirement once the promotion is accepted.  

13.  Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, 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 in which they served on active duty satisfactorily.  However, paragraph 12-8d states, in pertinent part, that soldiers who have an approved retirement are in a 
non- promotable status and further that they will not be promoted unless a request for withdrawal of their retirement application has been approved.

CONCLUSIONS:

1.  After carefully evaluating the evidence or record and the independent evidence submitted by the applicant, the Board concluded, it was likely that the applicant was in fact promoted to and successfully served for some period of time in the rank of SGM/E-9.  Therefore, the Board determined that it would be appropriate to advance the applicant, to the rank and pay grade of SGM/E-9, on the retired list at this time.  

2.  The specific facts and circumstances surrounding the events which took place in regard to the applicant’s selection for, promotion to, and service in the rank of SGM/E-9 are not clear.  The did have an approved retirement, which by regulation placed him in a non-promotable status.  In addition, there is no question he wished to be removed from the CSM list and program.  Therefore, the Board believes there is sufficient reason to believe his retirement in the rank of MSG/E-8 was the proper and equitable action to take at the time of his separation for retirement.  

3.  However, there is no evidence of record to show that the applicant ever formally declined promotion to the rank and grade of SGM/E-9.  Further, there is no information to indicate that the chain of command took timely and appropriate action to remove his name from the promotion standing list.  An action that should have occurred prior to the effective date of the applicant’s promotion or the publication of his promotion orders.  Therefore, the Board found there was an adequate equity basis on which to support granting the requested relief in this case. 

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by advancing the individual concerned to the rank and pay grade of SGM/E-9 on the retired list.  The effective date of the this action is 19 November 1996, which is the date his active duty service and his service on the retired list totals 30 years.  

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

___js ___  ___mdm_  __mw ___  DENY APPLICATION

		_____John N. Slone_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000036546	
SUFFIX		
RECON		
DATE BOARDED	2000/05/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1. 319	131.0900	
2.		
3.		
4.		
5.		
6.