PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            22 June 2000
	DOCKET NUMBER:   AR2000038324

	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. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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, that he be provided the decision of the promotion Stand-By Advisory Board (STAB) in regard to his promotion to 
master sergeant/E-8 (MSG/E8).

3.  The applicant states, in effect, that at the time of his retirement at Fort Leonard Wood, Missouri he was advised that his retirement would not prevent his being considered for promotion to MSG/E-8 by the STAB.  He claims that due to his adjusted sergeant first class/E-7 (SFC/E-7) date of rank (DOR) he was pending consideration for promotion to MSG/E-8 under the criteria used by the 1980, 1981 and 1982 MSG/E-8 promotion selection boards, and he requests this consideration at this time.  In support of his application, he submitted a letter published by the Army Personnel Command (PERSCOM) which verified his STAB promotion to SFC/E-7, with a DOR of 15 July 1977. 

4.  The applicant’s military records show that on 29 February 1984 he was released from active duty (REFRAD) by reason of length of service retirement, in the rank of SFC/E-7, under the provisions of Title 10 of the United States Code, section 3914 (10 USC 3914).  At the time of his retirement the applicant had completed 22 years and 12 days of active military service.

5.  The record shows that the applicant was initially promoted to the rank of SFC/E-7 on 1 June 1981 with a DOR of 28 May 1981.  On 31 January 1984, a month prior to the applicant’s retirement, this Board rendered a favorable decision which resulted in the applicant’s DOR to staff sergeant/E-6 (SSG/E-6) being adjusted to 16 June 1970.  This DOR adjustment resulted in his being referred to a STAB for promotion consideration to SFC/E-7 using the criteria of the 1976 SFC/E-7 promotion selection board. 

6.  On 30 November 1984, a PERSCOM letter, announced the applicant’s selection for promotion by the STAB that adjourned on 11 October 1984.  
His name was added to the calendar year 1976 SFC/E-7 promotion selection list and PERSCOM Order Number 8-1 established his SFC/E-7 DOR as 15 July 1977.  

7.  The PERSCOM letter also stated that the applicant’s records would be referred to a STAB scheduled to convene during February 1985, for promotion consideration to MSG/E-8.  He was to be considered for MSG/E-8 using the criteria established for the November 1980 MSG/E-8 selection board.  It further indicated that if he were not promoted by that board, his records would be referred to a STAB scheduled to convene during July 1985 who would consider him for promotion to MSG/E-8 using the criteria used by the November 1981, September 1982, and the August 1983 promotion selection boards.  

8.  On 8 November 1988, in conjunction with a petition to this Board for back pay and allowances submitted by the applicant , the PERSCOM Promotion Branch provided an advisory opinion.  This opinion verified the promotion information contained in the 1984 PERSCOM letter and supported the applicant’s claim for back pay and allowances in the grade of SFC/E-7 from 1 August 1977 to 31 May 1981.  

9.  PERSCOM also opined that the applicant would have been eligible for promotion consideration to MSG/E-8 under the criteria used by the November 1980, November 1981, and September 1982 MSG/E-8 promotion selection boards.  However, they did indicate that based on his having an approved request for retirement, dated in April 1983, he would not have been eligible for MSG/E-8 consideration by the 1983 selection board.  

9.  In connection with the processing of this case, a staff member of this Board contacted the PERSCOM promotion branch to determine if the applicant had ever been considered by a STAB for promotion to MSG/E-8.  The Promotion Branch at PERSCOM could find no record of the applicant’s record ever being referred to a STAB for promotion consideration to MSG/E-8 either in connection with the their 1984 letter or their 1988 advisory opinion. 

CONCLUSIONS:

1.  The Board noted the applicant’s contention that he was advised that his retirement would not prevent his promotion consideration to MSG/E-8 by the STAB and he was under the impression this would take place subsequent to his retirement.  The Board, after carefully evaluating the evidence or record and the independent evidence submitted by the applicant, determined that his claim has merit.

2.  The evidence or record shows that, as a result of the STAB that adjourned on 11 October 1984, which resulted in the applicant’s SFC/E-7 DOR being adjusted to 15 July 1977, he gained entitlement to consideration for promotion to MSG/E-8 by a STAB, using the criteria established for the 1980, 1981, and 1982 MSG/E-8 selection boards.  The fact that he left active duty prior to this STAB decision should not have impacted his resultant right to STAB promotion consideration to MSG/E-8.

3.  The 1984 PERSCOM promotion letter and their subsequent 1988 advisory opinion to this Board, both verify the applicant’s entitlement to STAB promotion consideration, using the 1980, 1981, and 1982 MSG/E-8 selection criteria.  In addition, it has been verified by PERSCOM officials that this consideration never took place. 

4.  Therefore, the Board concluded that it would be appropriate to grant this promotion consideration at this time.  The applicant’s record should be referred to STAB for promotion consideration to MSG/E-8, using the criteria established by the 1980, 1981, and 1982 MSG/E-8 promotion selection boards. 

5.  Further, if the applicant is selected for promotion to MSG/E-8 by the STAB, he should be provided all the resultant back pay and allowances due from the date of his promotion to the date of his retirement. 

6.  In addition, if promoted to MSG/E-8 by the STAB, the applicant’s record should be corrected to show he retired in the rank of MSG/E-8 and he should be provided the difference between SFC/E-7 and MSG/E-8 retired pay from the date of his retirement through the present.  

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by referring the records of the individual concerned to a STAB for promotion consideration to MSG/E-8, using the criteria established for the 1980, 1981, and 1982 MSG/E-8 promotion selection boards, and if selected for promotion;

b.  by providing the back pay and allowances due for the difference between SFC/E-7 and MSG/E-8 pay from the date of his promotion to MSG/E-8 until his retirement date; 

c.  by correcting the records of the individual concerned to show that he was released from active duty and placed on the retired list in the rank of 
MSG/E-8; and 

	d.  by providing the individual concerned all back pay due based on the difference between SFC/E-7 and MSG/E-8 retired pay from the date of his retirement through the present.  

BOARD VOTE:  

___ls____  ___ao___  ___ra___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Luther L. Santiful_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000038324	
SUFFIX		
RECON		
DATE BOARDED	2000/06/22	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1984/02/29	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.