MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 June 2000
	DOCKET NUMBER:   AR2000036596

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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:  That he be advanced on the Retired list to the pay grade of E-8.

APPLICANT STATES:  In effect, that he was selected for promotion to the pay grade of E-8 and was supposed to be promoted effective 1 July 1993; however, due to the fact that he was recovering from an injury and was undergoing physical therapy, he failed his Army Physical Fitness Test (APFT) and was placed under a suspension of personnel actions (flagged).  He further states that he subsequently passed the APFT in June 1993 and should have been promoted on 1 July 1993; however, through an administrative error his orders were not published until September 1993 with an effective date of 1 July 1993.  He goes on to state that meanwhile, he reassessed his family situation due to the poor health of his wife and daughter and decided that it was best for his family to be treated by a single physician and elected to request retirement on 22 June 1993, with a requested retirement date of 1 January 1994.  He also states that he was promoted to the pay grade of E-8 and served in that pay grade until he was retired in the pay grade of E-7.  Additionally, he states that he served in two E-8 positions in 1980 and 1990 and therefore should be advanced to that grade.

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

On 25 March 1992, while serving in the pay grade of E-7, the applicant was flagged for failure of the APFT.  The flagging action was removed on 30 June 1992 based on his having met APFT standards. 

He submitted a application for retirement on or about 22 June 1993 and his application was approved on or about 9 July 1993.  His retirement orders were published on 26 July 1993 with an effective date of retirement of 1 January 1994.

On 11 August 1993 he was issued a permanent physical profile which prohibited backpacking, pushups and situps. 

On 20 September 1993 orders were published by the Total Army Personnel Command (PERSCOM) promoting him to the pay grade of E-8 effective 1 July 1993.  However, there is no indication that he was ever promoted to that pay grade and it is noted that the orders specified that the orders would be revoked if he was not in a promotable status and that acceptance of the promotion automatically incurred a 2-year service obligation prior to nondisability retirement.

On 31 December 1993 he was honorably released from active duty and was transferred to the USAR Control Group (Retired) in the pay grade of E-7.  He had served 20 years, 10 months, and 5 days of total active service.

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 completion 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 that requirement.

2.  In order to be advanced to a higher grade on the Retired list, the applicant must have at some time been advanced to a higher grade prior to his being placed on the Retired list and must have a combined total of 30 years of service (active and/or service on the Retired list).  Inasmuch as there is no evidence in the available records to show that he was actually promoted to the pay grade of E-8, there is no basis to advance him on the Retired list to a grade higher than he currently holds.

3.  The Board also finds that by virtue of his having applied for retirement after knowing that he was on the promotion selection list, he in effect was declining promotion and was in a non-promotable status when his retirement was approved.

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

__wtm___  ___mdm_  ___clg __  DENY APPLICATION

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

INDEX

CASE ID	AR2000036596	
SUFFIX		
RECON		
DATE BOARDED	2000/06/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV TO HI GRD HELD	
2.		
3.		
4.		
5.		
6.