MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 June 2000
	DOCKET NUMBER:   AR2000037754

	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. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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 on the retired list to the rank and pay grade of master sergeant/E-8 (MSG/E-8). 

APPLICANT STATES:  In effect, that he was promoted to MSG/E-8 in July 
1980 and was rated as a MSG/E-8 through December 1980.  He claims that although he submitted a letter of declination at the time no action was taken on this matter until the spring of 1981.  Regardless of his intent to refuse the promotion his command required him to wear the stripes until his promotion was officially revoked.  He contends that not only did he wear the stripes he actually filled a MSG/E-8 position for the better part of two years.  He performed in this position two months prior to his retirement date of 31 October 1981, and believes that he meets all the requirements for advancement on the retired list to the rank and pay grade in which he diligently and professionally performed in.  

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

On 31 October 1981, he retired from the Regular Army, in the rank of sergeant first class/E-7 (SFC/E-7), after completing 20 years and 3 days of active military service. 

On 1 July 1980, Orders Number 113-1, was issued by the Army Personnel Command (PERSCOM).  This order provided the authority for the applicant’s promotion to MSG/E-8, effective 1 August 1980, with a date of rank of 25 July 1980.  The applicant admits to and there is verification in the record that he elected to decline this promotion.  

On 8 September 1980, Orders Number 155-1 was issued by PERSCOM.  This order provided the authority to revoke the applicant’s promotion to MSG/E-8, under the provisions of paragraph 7-45, Army Regulation 600-200, based on his request to decline the promotion.  

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 14 January 1981.  In this application for retirement the applicant requested a retirement date of 31 October 1981.  

On 31 October 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 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 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 they held and satisfactorily served in while on active duty.

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 not decline promotion until the promotion was announced in an order.  It also provided, in effect, that a member was required to submit a declination through command channels not later than 30 days after the effective date of the promotion.  

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 MSG/E-8 was accomplished in accordance with the applicable regulations in effect at the time.  In addition, the action was taken at the applicant’s own request in conjunction with his desire to process a request for retirement 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 never accepted his promotion to MSG/E-8 and formally declined the promotion under the applicable provisions of the regulation.  In the opinion of the Board, this constituted a refusal to accept the responsibility to serve on active duty in that rank and pay grade.  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 relief in this case.  

3.  The applicant declined his promotion to MSG/E-8, upon the publication of the promotion order, and his promotion was revoked accordingly by the proper authority.  Therefore, the Board concluded there was no error or injustice in this case and that advancement on the retired list is not warranted.

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

____ls___  ___ao___  ___ra ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037754	
SUFFIX		
RECON		
DATE BOARDED	2000/06/22	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1981/10/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.