MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 May 2000
	DOCKET NUMBER:   AR2000036777

	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.

APPLICANT STATES:  In effect, that he should be advanced on the retired list to the highest grade in which he satisfactorily served on active duty.  He states that his case is supported by the several exhibits that are enclosed with this case.  These exhibits include statements from supervisors, promotion recommendations, award recommendations, evaluation reports, and a copy of his personnel qualification record (Department of the Army (DA) Form 20).

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

On 31 July 1976, he retired from the Regular Army after completing 20 years and 20 days of active military service.  At the time of his retirement the applicant held the rank of master sergeant/E-8 (MSG/E-8) and served in military occupational specialty 71L50 (Administrative Sergeant).  

Block 23 (appointments and reductions) of the applicant’s DA Form 20 shows that he attained the rank of MSG/E-8 on 27 April 1973, which is the highest rank and pay grade he held while serving on active duty.  Although block 38 of the 
DA Form 20 does indicate that he served in a sergeant major/E-9 position for approximately 5 months, between October 1968 and March 1969, there is no evidence of record to show that he was ever actually promoted to or held this rank and pay grade while serving on active duty. 

On 31 July 1976, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Report of Separation 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 voluntary retirement.  In addition, at the time of his REFRAD he held the rank of MSG/E-8 and had completed a total of 20 years and 20 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.  After careful evaluation of the evidence of record and the independent evidence submitted by the applicant, the Board determined there was no basis for advancing the applicant on the retired list.  

2.  The record clearly shows that the applicant was never actually promoted above the rank of MSG/E-8 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 never held a pay grade above E-8, 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.

3.  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 the aforementioned requirement.

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

__sk____  ___jev __  ___jpi ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036777	
SUFFIX		
RECON		
DATE BOARDED	2000/05/31	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1976/07/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 319	131.0900	
2.		
3.		
4.		
5.		
6.