MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 August 2000
	DOCKET NUMBER:   AR2000037467

	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 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 served his country with honor for more than twenty years, to include two tours in Vietnam and thinks it was unjust not to allow him to retire at the highest grade which he was promoted to after he had worked so hard to achieve that rank.  He contends that this is so important to him that he would accept the promotion to MSG/E-8 with no pay.

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

On 31 March 1983, he was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 3914, by reason of length of service retirement.  At the time of his retirement the applicant held the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7) and had completed 
20 years and 24 days of active military service.  

The applicant’s Department of the Army (DA) Forms 2 and  2-1 (Personnel Qualification Records-PQR) indicate that he was promoted to the rank of 
MSG/E-8 on 30 June 1982.  However, a DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in his records.  

The DA Form 2339 verifies that on 27 March 1982, the applicant submitted his request for retirement as an SFC/E-7 and that he requested a retirement date of 31 March 1983.  This retirement request was approved by the appropriate authority and the applicant’s retirement was established for 31 March 1983, in the rank of SFC/E-7.  In addition, the record shows that on 16 June 1982, the applicant was deleted from an overseas assignment to Germany based on this approved retirement.

On 31 March 1983, 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 document shows that he was separated, under the provisions of title 10, United States Code, section 3914, by reason of retirement, in the rank of SFC/E-7.

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 in which they served on active duty satisfactorily.  However, paragraph 12-8d states, in pertinent part, that soldiers who have an approved retirement are in a non- promotable status and further that they will not be promoted unless a request for withdrawal of their retirement application has been approved.  

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.  The Board notes the applicant’s contention and congratulates him on his extensive honorable service.  However, this alone does not provide a basis for the requested relief.

2.  The evidence of record establishes that the applicant had an approved retirement prior to being promoted to MSG/E-8 which would have placed him in a non-promotable status and that he had been deleted from an overseas assignment based on his having that approved retirement.  These factors would have rendered the applicant’s promotion to MSG/E-8 erroneous which would have mandated the promotion be revoked by DA.

3.  The provisions of law and regulation only allow for advancement of soldiers on the Retired List when they have in fact satisfactorily served in a higher pay grade.  Given the applicant was in a non-promotable status prior to his promotion based on his having an approved retirement, the Board concludes he does not meet the satisfactory service prerequisite necessary for advancement on the Retired List.  

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 the aforementioned 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	AR2000037467	
SUFFIX		
RECON		
DATE BOARDED	2000/08/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1983/03/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.