MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 August 2000
	DOCKET NUMBER:   AR2000037619

	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 Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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 Staff Sergeant/E-6 (SSG/E-6) on the Retired List. 

APPLICANT STATES:  In effect, that although he was court-martialed his sentence did not include a reduction in rank.  In support of his application he submits a copy of his retirement order which shows his rank and pay grade as Sergeant/E-5 (SGT/E-5) and a copy of a promotion order, Special Order Number 211, paragraph 3770, which indicates he was promoted to SSG/E-6 on 
19 October 1974.  

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

On 31 October 1978, he was released from active duty (REFRAD), under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement.  At the time of his retirement the applicant held the rank and pay grade of SGT/E-5 and had completed 20 years, 1 month, and 5 days of active military 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 SGT/E-5 on 23 July 1966.  There is an entry that indicates that the applicant was promoted to SSG/E-6 on 19 October 1974, however that entry is lined through and there is no indication in the record that he ever actually held that higher grade while serving on active duty. 

In May 1978, the Chief of the Enlisted Records Branch at Fort Hood, Texas, who was responsible for the maintenance of the applicant’s Personnel Qualification Record (PQR) completed a statement that indicated that during an interview with the applicant, in regard to the applicant’s eligibility for promotion to Sergeant First Class/E-7, he requested the applicant provide a copy of his promotion order to SSG/E-6.  

The applicant provided a copy of Special Order Number 211, paragraph 3770, dated 30 July 1975, issued by Headquarters United States Army Europe and Seventh Army., APO New York 09403.  It appeared to personnel officials at that time that the copy of the order provided by the applicant had been modified.

On 2 May 1978, personnel officials at Fort Hood, Texas submitted a request for documents to the Records Center, U.S. Forces Support District (Norddeutschland), APO New York 09403 requesting a copy of paragraph 
3770 of Special Order 211, which was the paragraph and order number on the copy of the order the applicant provided as evidence that he had been promoted to SSG/E-6.

On 15 June 1978, the Assistant Adjutant of United States Army, Europe and Seventh Army, APO NY 09403, provided an official copy of the paragraph 3770, Special Order Number 211, they had issued on 30 July 1975.  However, the official copy did not contain the applicant’s name but instead had the name of another soldier who had been promoted to SSG/E-6 via that order.

The resolution of the modified promotion order and false records issue is unclear; however, the DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in records and verifies that he in fact requested retirement in the rank and pay grade of SGT/E-5.  It also shows that he submitted his request for retirement on 13 October 1978 and that he requested a retirement date of 31 October 1978.  On 19 October 1978, the appropriate authority approved his retirement request for 31 October 1978 as a SGT/E-5. 

On 31 October 1978, 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 authenticated by the applicant with his signature.  This document shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason of retirement and that at the time of his REFRAD he held the rank of SGT/E-5 and had completed a total of 20 years, 1 month, and 5 days of active military service.

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 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. 

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.  

2.  The Board noted the applicant’s claim that he was promoted to SSG/E-6 via paragraph 3770 of Special Order Number 211, however, the record clearly establishes that another soldier was promoted via that particular order.
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 there is no evidence that the applicant ever served in pay grade 
E-6, advancement on the Retired List to that grade is not appropriate.  Therefore, the Board concluded that the requested relief is not warranted 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 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

___sw___  ___lds___  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000037619	
SUFFIX		
RECON		
DATE BOARDED	2000/08/17	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1978/10/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.