MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 August 2000
	DOCKET NUMBER:   AR2000037042

	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. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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 promoted to Sergeant First Class/E-7 (SFC/E-7).

APPLICANT STATES:  In effect, that he was promoted from Staff Sergeant/E-6 (SSG) to SFC/E-7 on 1 May 1980 with a date of rank of 8 April 1980.  This promotion carried with it a 2-year active duty service obligation which he was required to complete prior to his retirement.  However, when he requested to withdraw his approved retirement in order to extend to meet the promotion active duty service remaining requirement, his request was disapproved.  

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

On 30 June 1980, the applicant was released from active duty (REFRAD), in the rank and pay grade of SSG/E-6, under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement.  At the time of his REFRAD the applicant had completed 20 years, 6 months, and 3 days of active military service.

In November 1979, the applicant was notified that he had been placed on assignment instructions for Germany with a scheduled arrival date in July 1980.  At this time the applicant elected to request retirement in lieu of accepting the permanent change of station (PCS).

The DA Form 2339 prepared by the applicant is on file in records.  This form verifies that the applicant submitted his request for retirement, in lieu of accepting a permanent change of station (PCS), on 2 January 1980 and that he requested a retirement date of 30 June 1980.  It also verifies that SSG/E-6 was the highest rank in which he served on active duty.  On 11 March 1980, the appropriate authority approved his retirement request for 30 June 1980 in the rank of 
SSG/E-6. 

On 1 April 1980, DA Order Number 60-3 was issued by the Military Personnel Center (MILPERCEN).  This order provided the authority for the applicant’s promotion to SFC/E-7.  However, given the applicant had an approved retirement, which he submitted in lieu of accepting a PCS move, his promotion was rendered invalid and his promotion order was formally revoked via DA Order Number 91-1, dated 27 May 1980, issued by the MILPERCEN.

On 28 May 1980, the applicant requested that his retirement be withdrawn and that he be allowed to accept his promotion and complete the 2-year active duty service obligation.  This request was supported by his chain of command; however, on 25 June 1980, the request was disapproved by the Chief of the Retirements Branch at the MILPERCEN.

The MILPERCEN denial action explained that a retirement submitted in lieu of PCS may not be withdrawn and it directed that the applicant be retired on his approved retirement date.  They further indicated that the circumstances in the case required that they closely and thoroughly review the regulations and policy in this matter.  However they concluded,  after careful review of the circumstances of the applicant’s case, that strict conformance to policy was necessary when retirement in lieu of PCS is involved to ensure consistency and fairness to other Army members faced with similar circumstances. 

In addition,  MILPERCEN commented that by regulation, commander’s are required to suspend promotion action on any member who is in a 
non-promotable status when their name appears on a promotion list.  In the applicant’s case his retirement was approved prior to his promotion which place him in a non-promotable status when his promotion order was published.  This mandated that his promotion be revoked.

On 30 June 1980, 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 authenticated by the applicant with his signature.  This form shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200 by reason of retirement.  It further verifies that he was REFRAD and was placed on the Retired List in the rank and pay grade of SSG/E-6.  

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 states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and satisfactorily served in while on active duty.  The legal authority for this action is contained in Title 10 of the Untied States Code, section 3964 (10 USC 3964) which provides the legal authority for the advancement of members on the Retired List. 

Paragraph 12-8 (Promotions) states, in pertinent part, that soldiers who have an approved retirement are in a nonpromotable status. They will not be promoted unless a request for withdrawal of their retirement application has been approved.  In addition, it prescribes that soldiers who are promoted to the pay grades of E-7, E-8 or E-9 incur a 2-year service obligation that begins from the effective date of promotion and which must be completed before voluntary retirement.  

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 evidence or record shows that the revocation of the applicant’s promotion to SFC/E-7 was accomplished in accordance with the applicable regulation in effect at the time.  In addition, the action was taken as a result of the applicant being in a nonpromotable status on the effective date of his promotion based on his having earlier elected to retire in lieu of accepting an overseas assignment.  Therefore, the Board finds no basis for restoring the applicant to the rank and pay grade of SFC/E-7.

2.  In addition, by law and regulation, advancement of soldiers on the Retired List is only authorized when a member has held and satisfactorily served in that higher pay grade while on active duty.  The applicant was in a nonpromotable status on the effective date of his promotion based on his having an approved retirement and is therefore ineligible for advancement on the Retired List. 

3.  In the opinion of the Board, the applicant’s desire to retire rather than accept an overseas assignment voluntarily placed him in a non-promotable status and therefore, constituted a refusal on his part to accept the responsibility to serve on active duty as an SFC/E-7.  Therefore, the Board determined the applicant did not satisfactorily hold or serve in the higher grade while on active duty and there is no basis on which to support granting the requested relief 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

__tdh ___  ___gw___  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037042	
SUFFIX		
RECON		
DATE BOARDED	2000/08/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1980/06/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.