MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 July 2000
	DOCKET NUMBER:   AR2000037826

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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, advancement on the Retired List to the pay grade of E-8.

APPLICANT STATES:  In effect, that he was placed on the promotion list to the pay grade of E-8 in the early 1970’s and remained on that list until he was promoted to the pay grade of E-8 in August 1979.  He further states that he was never informed that he had to hold the rank for 2 years before being able to retire in that pay grade and has just discovered the provisions of law that allow for advancement on the Retired List in the highest grade satisfactorily served.  He also states that he was informed by officials at the personnel office that in order to retire prior to completing 2 years in grade he would have to retire in the pay grade of E-7.  In support of his application he submits one leave and earnings statement (LES) for the month of October 1979 showing that he was paid in the pay grade of E-8.  He also submits two letters from his commanders congratulating him on his promotion to the pay grade of E-8.

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

The applicant was promoted to the pay grade of E-7 on 13 January 1972 and his records were submitted to the Calendar Year 1978 Master Sergeant Promotion Selection Board on 3 August 1978.  He was selected by that board and was assigned a sequence number of 0574 in military occupational specialty 67Z (Aircraft Maintenance Senior Sergeant).

On 25 September 1979 orders were published by the Department of the Army promoting the applicant to the pay grade of E-8 effective 1 October 1979 with a date of rank of 1 September 1979.  The orders specified that acceptance of the promotion automatically incurred a 2-year service obligation prior to non-disability retirement.

The applicant’s records show that on 27 September 1979, the promotion orders were revoked by orders number 265-1.

On 1 October 1979 the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting retirement by reason of length of service to be effective 1 April 1980.  He indicated that the highest pay grade he had served in was the pay grade of E-7 and his request was approved on 15 October 1979. 

Accordingly, he was honorably released from active duty on 31 March 1980 and was transferred to the USAR Control Group (Retired) in the pay grade of E-7, effective 1 April 1980.  He had served 20 Years, 6 months, and 26 days of total active service.

A review of the applicant’s LES for the month of October 1979 shows that he received pay in the pay grade of E-8 for that month.  A review of the promotion letters submitted with his application show that the applicant’s commanders were congratulating him in March 1979 for his selection to the pay grade of E-8.

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completing 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

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.  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.

2.  In order to be advanced to a higher grade on the Retired List, the applicant must have at some time been properly advanced to and satisfactorily served in a higher grade prior to his being placed on the Retired List.  The applicant has not submitted evidence with his application, and the evidence of record does not contain any evidence to show that he was properly promoted to a higher grade than he held at the time of retirement.  Therefore, there is no basis to promote him to a higher grade or to advance him on the Retired List.

3.  Furthermore, given that his promotion orders were revoked 2 days after they were published, it is reasonable to presume that the applicant elected to decline the promotion, to serve the 2-year service remaining obligation, and instead to elect retirement.  Accordingly, his promotion orders were properly revoked; an action which negated his promotion to the pay grade of E-8.  Therefore, the Board finds that he did not satisfactorily serve in the pay grade of E-8.

4.  While the applicant has provided an LES to show that he received pay in the pay grade of E-8 for 1 month, he has not provided any additional LES’s to show that he continued to receive pay in that grade until the date of his retirement      (6 months after the promotion date).  Accordingly, it is reasonable to presume that once the promotion orders were revoked it took at least 1 month before the E-8 pay was recouped by finance officials.

5.  The applicant’s contentions that he was not notified that his promotion would incur a 2-year service remaining obligation have been noted by the Board and appear to be without merit.  His promotion orders clearly specified the conditions of his promotion; therefore, the Board finds no merit in advancing him on the Retired List to the pay grade of E-8.

6.  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

___ja____  ___mm__  __jlp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037826	
SUFFIX		
RECON		
DATE BOARDED	2000/07/13	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV ON RET LIST	
2.		
3.		
4.		
5.		
6.