MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 July 2000
	DOCKET NUMBER:   AR2000036788

	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. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able		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 master sergeant/E-8 (MSG/E-8).

APPLICANT STATES:  In effect, that he was promoted to MSG/E-8 on 
1 September 1979, with a date of rank of 2 August 1979.  However, when he was retired he was demoted to the rank and pay grade of sergeant first class/E-7 (SFC/E-7), which he believes was an injustice.  He indicates that he is submitting this request in response to an Army Echoes article pertaining to who may be advanced on the retired list.

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

On 1 August 1979, Orders Number 214-1, issued by the United States Army Personnel Command (PERSCOM) indicated that the applicant was promoted to the rank and pay grade of MSG/E-8, effective 1 September 1979, with a date of rank of 2 August 1979.

On 7 September 1979, in conjunction with his submission of a retirement application requesting to retire on 30 November 1979, the applicant completed a statement declining his promotion to MSG/E-8.  This request was accomplished under the provisions of paragraph 7-45, Army Regulation 600-200, in effect at the time. 

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in his service record.  This form verifies that the applicant submitted his request for retirement on 10 September 1979, and that he requested a retirement date of 30 November 1979.  On 12 September 1979, the appropriate authority approved his retirement request for 30 November 1979, in the rank of SFC/E-7.  This action was codified in Orders Number 177-58, dated 12 September 1979, issued by Headquarters, Fort George G. Meade, Maryland. 

On 30 November 1979, 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 chapter 12, Army Regulation 635-200, by reason of required service for retirement.  In addition, it indicates that at the time of his REFRAD he held the rank of SFC/E-7, and had completed a total of 20 years and 13 days of active military service.

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel.  Paragraph 7-45 contained guidance on the declination of promotions to pay grades E-7, E-8, and E-9.  It stated, in pertinent part, that a member could not decline promotion until the promotion was announced in an order.  It also provided, in effect, that a member was required to submit a declination through command channels not later than 15 days after the effective date of the promotion or in the case of individuals who were not promoted with future effective dates within 15 days of official verbal or any other method of official notification.  

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) of the regulation 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.  

Paragraph 12-8 (Service Obligations) states, in pertinent part, soldiers who are promoted to the grade SFC, MSG/1SG, or SGM/CSM incur a 2-year service obligation (Army Regulation 600-200).  This obligation will be from the effective date of promotion and must  be completed before voluntary retirement.  

Paragraph 12-12 (Waivers) states, in pertinent part, that exceptions to service obligations may be granted when the best interest of the service is involved or when substantial hardship exists or would result if the soldier is not retired.  Substantial hardship is a situation or circumstance which imposes undue suffering on the soldier or the immediate family.  Requests for exception to service obligation in order to retire must be submitted by the soldier only and it must be fully defined and documented. 

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 contention that it was an injustice that his promotion to MSG/E-8 was taken away; however, it found this claim lacked merit. 

2.  The evidence or record shows that the revocation of the applicant’s promotion to MSG/E-8 was accomplished in accordance with the applicable regulations in effect at the time.  In addition, the action was taken at his own request in conjunction with his desire to process a request for retirement.  Further, there is no evidence to suggest that any hardship existed that would have provided a basis for him to request a waiver of his promotion service obligation; thus, allowing him to retire as a MSG/E-8.  

3.  The Board also determined that the applicant was not entitled to advancement on the retired list.  By law and regulation, advancement of soldiers on the retired list is only authorized when a member has satisfactorily served on active duty in a higher pay grade.  Since the applicant voluntarily declined his promotion to MSG/E-8, as prescribed by regulation, the Board found no basis to grant a satisfactory service determination in this case.  Therefore, the Board concluded that his advancement to MSG/E-8 on the retired list was not warranted.

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

___ra ___  ___js____  __rjw ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036788	
SUFFIX		
RECON		
DATE BOARDED	2000/07/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1979/11/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.