MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 June 2000
	DOCKET NUMBER:   AR2000036804

	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:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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 of captain/0-3 (CPT/0-3).

APPLICANT STATES:  In effect, that he believes he may be eligible for advancement on the Retired List to the grade of CPT/O-3.  He is currently on the Retired List in an enlisted status in the rank of first sergeant/E-8 (1SG/E-8) but while on active duty beginning in May 1973 he held a dual status as a USAR officer.  

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

On 30 November 1976, he retired from the Regular Army after completing 
20 years and 28 days of active military service.  At the time of his retirement the applicant held the rank of 1SG/E-8 and served in military occupational specialty 11B50 (Infantryman).  

The record shows that on 4 May 1973, while serving on active duty in the rank of sergeant first class/E-7 (SFC/E-7), the applicant was appointed an infantry 
2nd lieutenant in the USAR.  On 3 May 1976, he was promoted to the rank of 
1st lieutenant in the USAR, while serving as a 1SG/E-8 on active duty.  1st lieutenant was the highest officer rank the applicant attained while serving in a dual status and was the USAR officer rank he held on the date of his retirement.  The record shows that all of the applicant’s USAR service was performed in a dual status and that he never served on active duty in an officer status. 

The applicant’s Department of the Army (DA) Form 2-1 (Enlisted Qualification Record) indicates in block 18 (appointments and reductions) that the applicant attained the pay grade of E-8 on 23 June 1974.  Notwithstanding the applicant’s dual status, the record shows that he never 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 records.  This form verifies that the applicant submitted his request for retirement on 14 June 1976 and that he requested a retirement date of 30 November 1976.  On 16 July 1976, the appropriate authority approved his retirement request for 30 November 1976, in the rank of 1SG/E-8. 

On 30 November 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 of the United States Code, section 3914 and chapter 12, Army Regulation 635-200, by reason retirement.  In addition, at the time of his REFRAD he held the rank of 1SG/E-8 and had completed a total of 20 and 28 days of active military service.

Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers.  It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. 

Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the retired list.  It states, in pertinent part, that warrant officer and enlisted members of the Army are 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.

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 enlisted 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 of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.  

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.  By law a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily for a minimum period of 6 months.  Further, by law, advancement on the retired list is limited to enlisted members and warrant officers, and is only authorized when one of these members had satisfactorily served on active duty in a higher pay grade.  Therefore, the Board found it would not be appropriate to advance the applicant on the retired list based on his dual status service as a USAR commissioned officer.

2.  The evidence of record reveals that the applicant retired in the highest enlisted rank he held and served in while on active duty.  Therefore, the Board concluded that the applicant was properly placed on the retired list as 1SG/E8, which is the rank and pay grade he held on the date of his retirement.  Therefore, the Board determined that 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 this 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

___slp___  __ao____  ___lm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036804	
SUFFIX		
RECON		
DATE BOARDED	2000/06/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1976/11/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.