MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR2000037561

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 Sergeant First Class/E-7 (SFC/E-7) on the Retired List.

APPLICANT STATES:  In effect, that he feels, since he was promoted to 
SFC/E-7, he should have been able to retire in that rank and pay without serving the additional two years.  He believes he satisfactorily served as an SFC/E-7 and should have been retired in that grade.

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

On 30 November 1981, he was released from active duty (REFRAD), in the rank and pay grade of Staff Sergeant/E-6 (SSG/E-6), under the provisions of chapter 12, Army Regulation 635-200, by reason of retirement for length of service.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that the applicant attained the rank of SSG/E-6 on 29 March 1967.  In addition, block 35 (Record of Assignments) shows that he was serving in a SSG/E-6 position for the five years immediately preceding his retirement.  

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 1 December 1980 and that he requested a retirement date of 30 November 1981.  It also verifies that 
SSG/E-6 was the highest rank in which he served on active duty.  On 8 January 1981, the appropriate authority approved his retirement request for 30 November 1981 in the rank of SSG/E-6. 

On 1 April 1981, DA Order Number 49-1 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 85-2, dated 4 June 1981, issued by the MILPERCEN.

On 30 November 1981, 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 separated 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 and based on his own desire to retire prior to completing his promotion service obligation.  

2.  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.  In addition, there is no evidence that he ever attempted to request a waiver of the two year promotion active duty service obligation.  

3.  In the opinion of the Board, the applicant’s desire to retire and not complete his promotion service obligation constituted a refusal 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

___sk___  ___ja____  __reb___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037561	
SUFFIX		
RECON		
DATE BOARDED	2000/08/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1981/11/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.