MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 August 2000
	DOCKET NUMBER:   AR2000036763

	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. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Joe R. Schroeder		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 his retirement rank and pay grade be changed to Sergeant Major/E-9 (SGM/E-9). 

APPLICANT STATES:  In effect, that he served as a battalion SGM/E-9 in the United States Army Reserve (USAR) Ready Reserve and based on the one Army concept he feels that he should appropriately hold that rank on the Retired List.  He believes that after serving in the USAR and attaining the rank of 
SGM/E-9 it was unjust for him to have to return to the rank of Sergeant First Class/E-7 (SFC/E-7) when he was released from the USAR and returned to the Retired List.

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

On 31 October 1968, he retired from the Regular Army, in the rank of 
SFC/E-7 after completing 20 years, 11 months, and 9 days of active military service. 

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates in block 23 (Appointments and Reductions) that the applicant attained the rank of SFC/E-7 on 16 April 1962.  There is no indication in this record that he ever held a higher grade while serving on active duty. 

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in his records.  This form verifies that the applicant submitted his request for retirement on 29 March 1968 and that he requested a retirement date of 31 October 1968.  On 17 September 1968, the appropriate authority approved his retirement request for 31 October 1968 in the rank of SFC/E-7.

On 31 October 1968, 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 authenticated by the applicant with his signature.  This form shows that he was separated, under the provisions of Title 10, United States Code, section 3914, by reason of length of service retirement.  In addition, it verifies that he separated and was placed on the Retired List in the rank and pay grade of SFC/E-7.

In August 1972, subsequent to his REFRAD and placement on the Regular Army Retired List, the applicant was allowed to enter the USAR Ready Reserve under a grant of indispensability from the Secretary of the Army to perform duties in the rank of SFC/E-7 and concurrently as a civilian technician responsible for the supervision of the unit personnel section.  During his tenure in the USAR he was erroneously promoted to the ranks of Master Sergeant/E-8 (MSG/E-8) and SGM/E-9. 

On 10 June 1980, the Deputy Chief of Staff for Personnel (DCSPER), First United States Army (1st Army), Fort Meade, Maryland published a policy letter pertaining to “Indispensability Transfer from the Retired Reserve to the Ready Reserve” and distributed it to all Commanders of Readiness Regions, USAR Commands, and USAR Units/Centers within the 1st Army span of control.  This policy letter, based on a legal opinion issued by the Judge Advocate General of the Army, stated, in pertinent part, that a finding of indispensability implies to a specific time, place, position, and individual.

In addition, the policy letter indicated that individuals who were granted a finding of indispensability for a specific position and were subsequently promoted or transferred to a new position must have the promotions vacated and must be transferred back to the Retired Reserve when they cease to occupy that specific position.  The policy letter also made clear there would be no exceptions to this rule, as the criteria was defined and mandated by Public Law. 

The letter established procedure that required in each case where a rescission of a promotion was required, de facto provisions would apply and it was the intent to resolve all cases in favor of the member.  Finally, it directed that personnel files be reviewed and that individuals whose assignment to a Troop Program Unit was based on a finding of indispensability be identified.  Those individuals who had been promoted to a higher grade would be reviewed to establish they occupied the higher rank in a de facto status and their promotions would then be rescinded, and each individual would be reported for transfer back to the Retired Reserve.  

The applicant’s promotions to MSG/E-8 and SGM/E-9 were rescinded under
de facto status provisions, and on 5 July 1981 he was relieved from USAR duty and transferred back to the USAR Control Group (Retired) as an SFC/E-7. 

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 of individuals who held a different rank title if they were retired in the appropriate pay grade.  

Title 10 of the United States Code, section 3914 provides the legal authority for an enlisted member of the Army who has at least 20, but less than 30, years of service to retire upon their request.  Section 3961 of Title 10 provides the general rule for the proper assignment of a retired grade.  It states, in pertinent part, that a Regular Army member who retires other than for physical disability retires in the grade they hold on the date of retirement. 

Title 10 of the United States Code, section 3964 contains the legal authority for the advancement of enlisted members on the Retired List.  It states, in pertinent part, that an enlisted member who is retired with less than 30 years of active service is entitled, when their active service plus their 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 as determined by the Secretary of the Army.  Section 3966 of Title 10 provides the law governing the maintenance of Retired Lists.  It directs that the Secretary of the Army shall maintain a Retired List containing the name of each retired enlisted member of the Regular Army.

Title 10 of the United States Code, section 3963 provides guidance on the highest grade held satisfactorily by Reserve enlisted members who have been reduced in grade not as a result of misconduct.  It states, in pertinent part, that a Reserve enlisted member of the Army described who is retired under section 3914 of the law shall be retired in the highest enlisted grade in which they served on active duty satisfactorily.  The law provides no provisions for any member of either the Regular Army or the Reserve Components to be advanced on the Retired List based on service in the USAR.

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 notes and understands the applicant’s feelings in regard to his retirement grade and his contention that he should be allowed to be retired as a SGM/E-9.  However, this factor does not provide a valid basis for relief. 

2.  Notwithstanding the applicant’s subsequent USAR service, the evidence of record clearly shows that he was REFRAD and placed on the Retired List as an SFC/E-7.  He entered the USAR under a grant of indispensability by the Secretary of the Army, in the rank of SFC/E-7, specifically to perform USAR duties as a civilian technician.  

3.  The appropriate authority determined that the applicant’s subsequent promotions to MSG/E-8 and SGM/E-9 in the USAR were erroneous under the law and they were rescinded accordingly.  This action was accomplished in accordance with the applicable law and regulation, and de facto status was granted to ensure no undue hardship was placed on the applicant.
4.  By law and regulation, an enlisted member retires in the rank and grade they hold on the date they are REFRAD and advancement on the Retired List is only authorized when a member has held and satisfactorily served in a higher pay grade while on active duty.  The law provides no provisions to advance a member on the Retired List based on USAR service and promotions attained subsequent to their being placed on the Retired List. 

5.  Notwithstanding his USAR promotions to MSG/E-8 and SGM/E-9, the Board finds no evidence that the applicant ever held or satisfactorily served on active duty in a rank higher than SFC/E-7, which is the rank and pay grade he held on the date he was REFRAD and in which he was placed on the Retired List.  Thus, the Board concludes that the applicant did not satisfactorily hold or serve in the higher grade while on active duty and therefore, there is no basis on which to support granting the requested relief in this case. 

6. 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.

7.  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

___jrs___  ___sac __  ___be___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036763	
SUFFIX		
RECON		
DATE BOARDED	2000/08/31	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.