MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 August 2000
	DOCKET NUMBER:   AR2000038091

	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:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		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 Sergeant First Class/E-7 (SFC/E-7) on the Retired List.

APPLICANT STATES:  In effect, he was put in for promotion to the pay grade of E-7 as a Platoon Sergeant sometime in April 1969, however, his records were incomplete at that time.  Subsequent to his recall to active duty from the Retired List his records only accounted for 2 years of service instead of the 20 years he had already served.  He states that he believes he would have been promoted at that time had it not been for his incomplete service records.  In addition, he claims that he was again put in for promotion to SFC/E-7 while serving as the Noncommissioned Officer in Charge (NCOIC) of the Surgical Clinic, a position authorized an SFC/E-7, but he was again not promoted.

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

On 31 May 1966, he was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 3914, by reason of length of service retirement.  At the time of his retirement the applicant held the rank and pay grade of SP6/E-6 and had completed 20 years and 14 days of active military service.

On 1 April 1969, the applicant was recalled to active duty and served until he reverted back to retired status on 29 February 1972.  At the time the applicant reverted to the Retired List he was still serving in the rank and pay grade of SP6/E-6.  At this time he had completed a total of 22 years, 11 months, and 
13 days of active military service. 

On 26 July 1971, a request was submitted from the Commander of Fort Monmouth, New Jersey, asking that the applicant be considered for promotion to SFC/E-7 by the Department of the Army (DA) Stand-By Advisory Board (STAB).  The reason cited for the action was that the applicant’s records had not been properly reconstructed subsequent to his recall to active duty.  It indicated that while he was serving in Vietnam two attempts were made to reconstruct the applicant’s records with no results and he was not promoted even though he was working in an authorized E-7 slot.  The request also stated that he had appeared before a local SFC/E-7 promotion board in July 1970 and had obtained the highest score of those competing, which should have resulted in his being added to the centralized promotion list as an add on.  His local promotion packet was enclosed with this request.

On 5 August 1971, DA approved the applicant’s promotion reconsideration by a STAB.  The applicant was considered from promotion to SFC/E-7 by a STAB that adjourned on 28 October 1971; however, he was not selected for promotion.  On 3 December 1971, a letter from The Adjutant General (TAG) advised the applicant of the STAB results and informed him that he would automatically be considered for promotion to SFC/E-7 by the Army selection board which convened on 2 November 1971.  

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates in block 23 (Appointments and Reductions) that he attained the rank of SP6/E-6 on 5 August 1964.  However, there is no indication in the record that he was ever selected for or promoted to a higher rank and pay grade while serving on active duty. 

The record contains a properly constituted Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which was signed by the applicant.  This document shows that on 29 February 1972, the applicant was REFRAD and reverted to the Retired List, in the rank and pay grade of SP6/E-6, after completing a total of 22 years, 11 months, and 13 days of active military service.

On 13 March 1972, this Board denied the applicant’s request for relief based on his being unjustly denied promotion.  This denial was based on the Board finding insufficient evidence to demonstrate that the applicant had been subjected to injustice or that there was a probable material error in his military records. 

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 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.  There are no provisions for advancement of individuals who held a different rank title if they were retired in the appropriate pay grade.  

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 Board noted the applicant’s contentions and concludes that these concerns were properly addressed while the applicant was still serving on active duty.  The evidence of record shows that the applicant was afforded promotion reconsideration to SFC/E-7, by a DA STAB, who had access to all his records and he was still not selected for promotion to SFC/E-7.  

2.  The record clearly shows that the applicant never held the rank and pay grade of SFC/E-7 while serving on active duty.  The provisions of law and regulation only allow for advancement of soldiers on the Retired List when they have in fact satisfactorily held and served in the higher pay grade while on active duty.  Given the applicant never served in pay grade E-7, advancement on the Retired List to that grade is not appropriate.  Therefore, the Board concluded that the requested relief is not warranted in this case.

3.  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.

4.  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

__dj ____  ___ewl __  __kak ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038091	
SUFFIX		
RECON	1972/03/72	
DATE BOARDED	2000/08/01	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1972/02/29	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.