MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 May 2000
	DOCKET NUMBER:   AR2000036703

	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:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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 and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, that he went before an SFC promotion board in 1969 and passed but was never promoted.  He claims that he successfully served as a patrol supervisor and as a platoon sergeant, which were positions that called for an SFC/E-7 but was never given his promotion.  He states that he was told that in order to receive his promotion to SFC/E-7 he would have to reenlist and go to Vietnam, which resulted in opting to retire.  He claims that this choice forced him to elect retirement, which he believes was unjust. 

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

On 30 June 1971, he retired from the Regular Army after completing 20 years, 
4 months, and 4 days of active military service.  At the time of his retirement the applicant held the rank and pay grade of staff sergeant/E-6 (SSG/E-6) and served in military occupational specialty 95B (Military Policeman).  

The applicant’s Department of the Army (DA) Form 20 (Qualification Record) indicates in block 23 (appointments and reductions) that the applicant attained the rank of SSG/E-6 on 29 July 1966.  The applicant’s qualification record gives no indication that the applicant was ever promoted to or held a higher rank and pay 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 1 February 1971 and that he requested a retirement date of 30 June 1971.  On 17 March 1971, the appropriate authority approved his retirement request for 30 June 1971 in the rank of SSG/E-6. 

On 30 June 1971, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Armed Forces of the United States Report of Transfer or Discharge), 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 voluntary retirement.  In addition, at the time of his REFRAD he held the rank of SSG/E-6 and had completed a total of 20 years, 4 months, and 4 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) 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 on the retired list of individuals who served in a position calling for a higher pay grade but who were never actually promoted to or held that higher rank and pay grade while serving 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 Board noted the applicant’s contentions that he was unjustly denied promotion to SFC/E-7 and unjustly forced to retire as SSG/E-6.  However, after careful evaluation of the evidence of record and the independent evidence submitted by the applicant, the Board found no evidence to corroborate these claims.  

2.  The evidence of record shows that the applicant requested voluntarily retirement from active duty in the rank of SSG/E-6, which is the highest rank and pay grade he held on active duty.  Therefore, given the applicant never held the rank and pay grade of SFC/E-7 while serving on active duty, the Board concluded there was no basis for advancing the applicant on the retired list.  

3.  The record clearly shows that the applicant was never actually promoted above the rank of SSG/E-6 while serving on active duty.  The provisions of law and regulation only allow for advancement of soldiers on the retired list when they have actually held and satisfactorily served in a higher pay grade.  Given the applicant was never promoted to or held a pay grade above E-6, advancement on the retired list to a higher grade is not appropriate.  Therefore, the Board concluded that the requested relief is not warranted in this case.

4.  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.

5.  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

___sk___  ___jev __  ___jpi ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036703	
SUFFIX		
RECON		
DATE BOARDED	2000/05/31	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/06/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 319	139.0900	
2.		
3.		
4.		
5.		
6.