MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR2000037688

	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. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 his rank and pay grade be restored to Sergeant First Class/E-7. 

APPLICANT STATES:  In effect, that he was erroneously retired in the rank and pay grade of Staff Sergeant/E-6 (SSG/E-6) when in fact he had been promoted to SFC/E-7.  He claims this action was unjust and his grade should be restored and he should be advanced on the retired list to SFC/E-7.

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

On 31 December 1967, he retired from the Regular Army, in the rank of 
SSG/E-6 after completing 20 years and 3 days of active military service.  

The Military Personnel Records Jacket (MPRJ) contains a copy of the Department of the Army (DA) Form 2339 (Application for Voluntary Retirement), submitted by the applicant on 2 July 1967.  In this application, he requested a retirement date of 31 December 1967.  This application was approved on 10 July 1967 and his retirement date was established as 31 December 1967. 

On 22 July 1967, Special Order Number 203, issued by the United States Military Assistance Command-Vietnam (USMACV), announced the applicant’s promotion to the rank and pay grade of SFC/E-7.  On 23 July 1967, prior to being made aware of his promotion, the applicant departed Vietnam for an assignment at Fort Knox, Kentucky.

In August 1967, Fort Knox queried the Department of the Army (DA) as to whether the applicant should be promoted or allowed to retire.  In September 1967, DA replied that the applicant should be afforded the opportunity of either accepting or declining the promotion to SFC/E-7.  If he accepted he would be required to complete the requirement to serve on active duty in that grade for 
2 years.  DA further advised that if the applicant declined the promotion, the promotion order should be revoked and he should be retired in the rank and pay grade of SSG/E-6.

On 6 September 1967, the applicant completed a statement declining the promotion to SFC/E-7.  He indicated that he would not accept the promotion to SFC/E-7 and that he desired to retire as a SSG/E-6 on 31 December 1967.  On 
3 October 1967, the applicant’s promotion order to SFC/E-7 was revoked via Special Order 276, issued by USMACV.  

On 31 December 1967, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Armed Forces of the United States Report of Transfer or Discharge), which was authenticated by the applicant with his signature.  This form shows that he was separated, under the provisions of title 10, United States Code, section 3914, by reason of retirement.  In addition, it verifies that he separated and was placed on the retired list in the rank and pay grade of SSG/E-6.  

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel.  Paragraph 7-45 contained guidance on the declination of promotions to pay grades E-7, E-8, and E-9.  It stated, in pertinent part, that a member could submit a declination of promotion through command channels after official notification of the promotion action.

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 mandated by 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.

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 carefully examining the evidence or record and the independent evidence submitted by the applicant, the Board concludes that relief is not warranted in this case.  The evidence or record shows that, after being afforded the opportunity to either accept or decline his promotion to SFC/E-7 by DA, the applicant voluntarily elected to decline his promotion to SFC/E-7.  

2.  The applicant’s promotion declination was based on his desire to proceed with his approved retirement and his unwillingness to complete the 2 year service obligation that would have resulted from his promotion.  Therefore, the Board finds no factors that would provide a basis that would merit the applicant’s  promotion or restoration to the rank and pay grade of SFC/E-7.

3.  Further, 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 never accepted his promotion to SFC/E-7 and formally declined the promotion under the applicable provisions of the regulation.  In the opinion of the Board, this action constituted a refusal to accept the responsibility to serve on active duty in that rank and pay grade.  He declined his promotion to SFC/E-7 and his promotion was revoked accordingly by the proper authority.  Thus, the Board finds no basis for advancing the applicant to SFC/E-7 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 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

__cmf___  ___ew___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037688	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1967/12/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 310	131.0000	
2.		
3.		
4.		
5.		
6.