PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 July 2000
	DOCKET NUMBER:   AR2000038011

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, advancement to the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7) on the retired list.  

3.  The applicant states, in effect, that he was promoted to SFC/E-7 in May 1977 and at that time the regulation required a member to serve on active duty 2 years prior to being eligible for retirement in that grade.  He claims that if an individual decided to retire prior to completing the 2 years, he would retire in the next lower grade.  He retired as a Staff Sergeant/E-6 (SSG/E-6) approximately 2 months after his promotion.  He claims that the regulation requiring a 2 year active duty service obligation (ADSO) has long since been changed, and soldiers can now retire in their highest grade, regardless of how long they served.  Consequently, he believes it would be justified to change his retirement grade from SSG/E-6 to SFC/E-7 based on current Army Regulations.  He indicates that retroactive pay is not a factor in his request and if it were granted fine, but if it is a deciding factor for approval he would be willing to waive back pay.  In addition, he is now a Federal civilian retiree and he took action to waive his military retired pay in order to combine it with his civilian retirement pay.  Therefore, he is no longer eligible to draw military retired pay in any rank and would just like the record to reflect the highest rank in which he satisfactorily served.  

4.  The applicant’s military records show that on 31 July 1977, he was released from active duty (REFRAD), in the rank and pay grade of SSG/E-6, under the provisions of Title 10 of the United States Code, section 3914, by reason of retirement for length of service.

5. The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that he was promoted to the rank of SFC/E-7 on 5 May 1977, which is the highest rank he held and served in while on active duty.  In addition, block 35 (Record of Assignments) indicates that he served in an SFC/E-7 position, in military occupation specialty 05F40, from 24 February 1976 until his retirement 31 July 1977.  

6.  On 15 April 1977, subsequent to his selection for promotion to SFC/E-7, the applicant submitted a request for retirement on 31 July 1977.  On 5 May 1977, the applicant was promoted to the rank of SFC/E-7, via Department of the Army (DA) Order 83-1, dated 29 April 1977, which is contained in the applicant’s Military Personnel Records Jacket (MPRJ).  On 6 June 1977, subsequent to his promotion to SFC/E-7, the applicant’s retirement was approved for 31 July 1977, in the rank of SSG/E-6.  The MPRJ contains no letter of declination of promotion from the applicant nor does it contain a revocation of the applicant’s promotion order.  

7. On 31 July 1977, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Report of Separation From Active Duty).  This document shows that he was separated, under the provisions of Title 10 of the United States Code, section 3914, by reason of retirement for length of service, in the rank of SSG/E-6 and that he had completed a total of 22 years and 7 days of active military service.

8.  On 15 June 2000, the Army Grade Determination Review Board (AGRDRB) returned the applicant’s request for advancement on the retired list without action based on their lack of jurisdiction in this case.  They found that, for equity purposes, it was more suitable for the applicant’s case to be reviewed by this Board.  

9.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, provided the policy guidance on the acceptance or declination of senior noncommissioned officer promotions.  Paragraph 7-45 stated, in pertinent part, that unless expressly declined by the individual concerned, a promotion is considered to be accepted as of the date of the announcing order.  It also required, in the case of an individual declining promotion, that a letter request declining the promotion be submitted by the individual concerned to DA, through command channels, within 15 days of the effective date of promotion shown in orders.  

10.  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).

11.  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.

12.  Paragraph 12-8 contains guidance on ADSO and paragraph 12-8d covers promotion service obligations.  Paragraph 12-8d (1) states, in pertinent part, that soldiers promoted to the ranks of SFC/E-7, Master Sergeant, and Sergeant Major incur a 2 year service obligation which begins on the effective date of promotion and must be completed before voluntary retirement.  However, paragraph 
12-8d (2) contains guidance on personnel excluded from the 2-year service obligation.  It states, in pertinent part, that a promoted individual may not be administratively reduced only to terminate a promotion service obligation.  

13.  Paragraph 12-11 contains provisions for granting waivers to promotion service obligations.  It states, in pertinent part, that exceptions to service obligations may be granted when the best interest of the service is involved or when substantial hardship exists or would result if the soldier is not retired.  Substantial hardship is a situation or circumstance which imposes undue suffering on the soldier or the immediate family. 

14.  Title 10 of the United States Code, section 1552 (10 USC 1552), states, in pertinent part,  that no correction to military records may be made unless the request therefor is submitted within 3 years of discovery of the alleged error or injustice, whichever date is later.  However, the Board has the authority to excuse a failure to apply within 3 years after discovery, if it finds it would be in the interest of justice to do so.

15.  Title 31 of the United States Code, Section 3702 (31 USC 3702), commonly known as the barring statute, provides the legal authority to settle claims.  It indicates that the Secretary of Defense shall settle claims involving uniformed service members' pay, allowances, travel, transportation, retired pay, and survivor benefits.  It also states, in pertinent part, that a claim submitted under this provision of law must be received by the official responsible or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues.

CONCLUSIONS:

1.  The Board noted the applicant’s contention that under current Army standards a member is not required to complete his 2 year promotion ADSO and is allowed to retire in the rank he holds no matter how long he has held that rank.  However, the Board found this contention is not correct.  The regulation does provide for waivers of promotion ADSO if the best interest of the service is involved or when substantial hardship exists or would result if the soldier is not retired.  In addition, these provisions are similar to provisions that were in effect at the time of the applicant’s REFRAD.

2.  However, the Board does find that relief is warranted in this case for other reasons.  The evidence or record shows that the applicant was promoted to the rank of SFC/E-7 on 5 May 1977 and that he successfully served in an 
SFC/E-7 position for about 16 months prior to his REFRAD.  In addition, there is no evidence of record showing that the applicant ever submitted a letter through command channels to DA declining his promotion to SFC/E-7.  Further, the record contains no indication that the applicant’s promotion order was revoked by DA.  

3.  Lacking evidence that he formally declined his promotion, as required by regulation, the Board finds that the applicant falls under the ADSO exclusion provisions of the regulation.  These provisions mandate that a member not be administratively reduced only to terminate a promotion service obligation.  Therefore, the Board concludes, in the interest of justice and as a matter of equity, that it would be appropriate to show that the applicant was REFRAD and placed on the retired list in the rank and pay grade of SFC/E-7.

4.  In the interest of justice, the Board chooses to waive the 3 year statute of limitations for the correction of military records contained in 10 USC 1552.  However, given the applicant’s stated willingness to waive any entitlement to back pay and allowances, the Board elects not to recommend a waiver of the provisions of 31 USC 3702, the barring statute, which requires that a claim be received within 6 years after the claim accrues.  Therefore, the Board recommends no monetary compensation in connection with this action.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned held the rank and pay grade of SFC/E-7 on the date of his release from active duty and that he was placed on the retired list in that rank and pay grade on that date. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___gp___  __mvt___  ___eb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____George D. Paxson____
		        CHAIRPERSON

INDEX

CASE ID	AR2000038011	
SUFFIX		
RECON		
DATE BOARDED	2000/07/18	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1977/07/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.