MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 October 2000
	DOCKET NUMBER:   AR2000037708

	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. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher W. Prosser		Member	
	Ms. Tracey L. Pinson		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 selected for promotion to MSG/E-8 by a properly constituted Department of the Army (DA) Promotion Selection Board and was actually promoted to that rank prior to declining promotion in order to retire.  He states, that he believes he should be advanced to MSG/E-8 on the retired list because he was selected for promotion by DA and based on his proven performance in MSG/E-8 positions.  He claims this performance is evidenced by a letter of appreciation he received from his unit commander, which congratulated him on his outstanding performance while serving as the acting First Sergeant/E-8 of his unit.  He claims that he elected to decline his promotion to MSG/E-8, 18 days after he was actually promoted in order to proceed with his already approved retirement.  He took this action because he had already  moved his family to their retirement home in Illinois and his staying on active duty to complete his two-year active duty service obligation at that point would have placed an undue hardship on them.  He states that he is now rated as 
100 percent disabled by the VA and it suffices to say that he would like to ensure his wife receives the maximum benefit upon his death, which he believes he earned as a result of his service. 

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

On 31 March 1978, he was released from active duty (REFRAD), in the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7), 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 (Enlisted Qualification Record) indicates in block 18 (appointments and reductions) that he was promoted to the rank of SFC/E-7 on 10 December 1969, which is the highest rank he attained while serving on active duty. 

The DA Form 2339 prepared by the applicant is on file in records.  This form verifies that the applicant submitted his request for retirement on 5 October 1977 and that he requested a retirement date of 31 March 1978.  It also verifies that he held the rank and pay grade of SFC/E-7 when he submitted his application for retirement and that this was the highest rank in which he served on active duty.  His retirement for 31 March 1978, in the rank and pay grade of SFC/E-7, was approved by the appropriate authority on 11 October 1977.

On 3 January 1978, DA Order Number 1-1 was issued by the Military Personnel Center (MILPERCEN).  This order provided the authority for the applicant’s promotion to MSG/E-8, effective 1 February 1978.  However, on 13 February 1978, the applicant submitted a letter in which he formally declined his promotion to the rank of MSG/E-8 based on his already having an approved retirement.  

The record contains a properly constituted Department of Defense (DD) Form 214 (Report of Separation From Active Duty), which was authenticated by the applicant with his signature on the date of his separation.  This document verifies that he was REFRAD on 31 March 1978, under the provisions of chapter 12, Army Regulation 635-200, by reason of retirement and that on the following day he was placed on the Retired List in the rank and pay grade of SFC/E-7.

Army Regulation 600-200, in effect at the time, provided the policies and procedures for promotions and reductions in grade.  Section IV outlined the process for selection for promotion to pay grades E-7, E-8, and E-9.  Paragraph 7-42 contained guidance on the acceptance of promotion.  It stated that unless a soldier declined promotion it is effective on the announcing date of the order.  However, the regulation did allow for a soldier to decline his promotion, in writing, within 30 days of the effective date of the promotion.

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 of record shows that the revocation of the applicant’s promotion to MSG/E-8 was accomplished in accordance with the applicable regulation in effect at the time.  This action was based on the applicant declining his promotion in order to proceed with his approved retirement prior to completing the two-year promotion active duty 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, he took action to decline his promotion in order to retire and there is no evidence to suggest he ever requested a waiver of the two-year promotion service obligation based on hardship reasons at the time.  

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 MSG/E-8.  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

___cjp __  ___ewl __  ___tp ___  DENY APPLICATION

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

CASE ID	AR2000037708	
SUFFIX		
RECON		
DATE BOARDED	2000/10/19	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1978/03/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
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