MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 June 2000
	DOCKET NUMBER:   AR2000037260

	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. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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 to the rank and pay grade of Master Sergeant/E-8 (MSG/E-8) on the retired list.

APPLICANT STATES:  In effect, that he was promoted to the rank and pay grade of MSG/E-8 by Department of the Army (DA) Order Number 22-1, dated 
3 August 1976.  He claims to have served satisfactorily in this grade, which is a higher grade than the Sergeant First Class/E-7 (SFC/E-7) rank he was retired in. In support of his application, he submits a copy of a letter from the commander of Fort McPherson, Georgia congratulating him on his promotion to MSG/E-8; a copy of an endorsement from his company commander notifying him of his selection for promotion to MSG/E-8; and copies of leave and earnings statements showing that he was paid for serving as a MSG/E-8.

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

On 30 November 1976, he retired from the Regular Army after completing 
23 years, 11 months, and 16 days of active military service.  At the time of his retirement the applicant held the rank and pay grade of SFC/E-7 and was serving in military occupational specialty 03Z (Special Services Senior Sergeant). 

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 rank of SFC/E-7 on 16 July 1968.  There is no indication in the DA Form 2-1 or any documents filed in the Military Personnel Records Jacket (MPRJ) that show that his promotion to MSG/E-8 was ever made a matter of record in his Official Military Personnel File (OMPF).  

On 31 March 1976, as a result of being placed on an overseas assignment, the applicant completed a Declination of Continued Service Statement (DCSS) expressing his intent to decline to extend or reenlist in order to meet the time in service requirements to complete the overseas tour.  His reason for taking this action was his desire to retire.  As required by regulation, in connection with completing his DCSS the applicant was counseled on the impact this action would have on his career by a local Personnel Officer, and he still elected to go through with the action.

As a result of his name being included on the MSG/E-8 promotion list, on 15 April 1976, the applicant submitted a request to withdraw his DCSS in order to accept the promotion.  The endorsement forwarding the applicant’s withdrawal request to DA contained a comment from the Personnel Officer who had counseled him on the impact of his original declination action.  He stated that he had personally counseled the applicant on the full impact his decision would have on his career and the applicant’s response was that he had thought through his actions thoroughly, and even if he did make the E-8 list he did not want the additional 
2 year lock in period.  
On 28 May 1976, the Enlistment Eligibility Activity (EEA), St Louis, Missouri, the DA agency responsible for acting on DCSS withdrawal requests, disapproved the applicant’s request to withdraw his declination to extend or reenlist.  On 2 June 1976, the applicant’s unit commander advised him of this result, and on 3 August 1976, the applicant submitted his request for voluntary retirement.

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 3 August 1976 and that he requested a retirement date of 30 November 1976.  On 10 August 1976, the appropriate authority approved his retirement request for 30 November 1976, in the rank of SFC/E-7.  This action was codified in Orders Number 32-20, dated 16 August 1976, issued by Headquarters, Fort McPherson, Georgia. 

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 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 23 years, 11 months, and 16 days of active military service.

Army Regulation 601-280 prescribes criteria for the Army Retention Program and sets forth policies, command responsibilities for the immediate reenlistment or extension of enlistment of soldiers currently serving in the Active Army.  This regulation also contains guidance on the preparation and use of the DCSS.  It states, in pertinent part, that soldiers must take action to meet service remaining requirements (SRR), this action is required regardless of the SRR start or report date, to include those after the soldier's current ETS.  It also requires that members who refuse to take action to satisfy military SRRs complete a DCSS, which once completed serves to deny further service.  There is extensive counseling required in connection with the processing of a DCSS and at the time of the applicant’s processing, a member completing a DCSS action had to be fully counseled on the impact to his career by a Personnel Officer.  This counseling had to ensure that members were fully advised that their refusal to comply with orders would result in the execution of a DCSS and that this would place them in a nonpromotable status.

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.  

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 he was promoted to the rank of MSG/E-8 and that he had satisfactorily served in that grade while on active duty.  However, the Board finds this claim lacks sufficient merit to warrant relief.

2.  The evidence or record shows that the applicant, after being fully counseled on the effects of his action, voluntarily elected to complete a DCSS.  This action resulted in his being placed in a nonpromotable status prior to his being identified for promotion to MSG/E-8.  In addition, the applicant was allowed to make his case for and to request withdrawal of his DCSS once identified for promotion.  However, this request was not favorably considered by the EEA, which was the appropriate DA authority for DCSS actions. 

3.  Given the circumstances of this case, the Board finds no injustice to the applicant resulted from his being retired in the grade of SFC/E-7.  The applicant voluntarily completed a DCSS, which placed him in a nonpromotable status prior to his being identified on the MSG/E-8 promotion list.  Notwithstanding the promotion order alluded to by the applicant and the pay vouchers he submitted in support of his case, any promotion action taken subsequent to his completing the DCSS and being placed in a nonpromotable status would have been invalid.  

4.  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 to meet his SRR for an overseas assignment and completed a DCSS, 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.

5.  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.

6.  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

__mm___  __jhl____  ___js____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037260	
SUFFIX		
RECON		
DATE BOARDED	2000/06/29	
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.  319	131.0900	
2.		
3.		
4.		
5.		
6.