MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 September 2000
	DOCKET NUMBER:   AR2000038448

	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. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Morrison, III		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:  That he be advanced on the Retired List to the pay grade of E-9.

APPLICANT STATES:  In effect, that at the time of his final retirement on 31 March 1971, he was erroneously retired in the pay grade of E-8 instead of the pay grade of E-9.  He further states that he was recalled to active duty in the pay grade of E-7, was promoted to the pay grade of E-8, and in December 1970 orders were published which promoted him to the pay grade of E-9.  However, the orders did not make it to him before he retired in March 1971.  He goes on to state that he served in E-9 positions prior to his retirement and should have been retired in that pay grade.  In support of his application he submits a copy of a newspaper article that announces his promotion to the pay grade of E-9.

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

The applicant was initially placed on the Retired List in the pay grade of E-7 on 1 June 1963 after having served 20 years, 7 months, and 25 days of total active service.

On 11 January 1965 the applicant submitted a request for recall to active duty under the Retired Enlisted Personnel Recall Program.  His request was approved and he was recalled to active duty effective 1 April 1965 for a period of three years.  He was promoted to the pay grade of E-8 on 29 June 1966 and remained on active duty through a series of extensions until 31 March 1971, when he was released from active duty and was reverted back to the Retired List in the pay grade of E-8, effective 1 April 1971.

The supporting documents submitted by the applicant include an unidentified newspaper article which announces the applicant’s promotion to the pay grade of E-9 effective 18 November.  It cites Department of the Army order number 231 as the order announcing the promotion.

A review of the applicant’s records fails to show that the orders were ever placed in the applicant’s records or that he ever was promoted to or served in that pay grade.

The applicant’s records also show that he initially was recalled to active duty at his request for a period of 3 years and that he was granted 3 additional years by the Department.

Army Regulation 635-200, in effect at the time, served as the authority for enlisted promotions and provided in effect, that acceptance of a promotion to the pay grade of E-7 through E-9 automatically incurred a 2-years service remaining obligation.  Additionally, it provided that anyone who had an approved retirement was in a non-promotable status.
Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held on active duty, 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 this 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 clearly had an approved retirement, more specifically, he had an established date of his REFRAD and reversion to the Retired List, which is one in the same, prior to his promotions orders being published, which placed him in a non-promotable status. Therefore, he could not have served the 2-year service remaining obligation required to accept the promotion.  Accordingly, the Board finds that he did not satisfactorily serve in the pay grade of E-9 prior to being placed on the Retired List. 

3.  While the Board accepts the applicant’s contention that he served in E-9 positions, such service does not constitute a basis for advancement on the Retired List to the next higher grade.  Such an advancement requires a duly constituted promotion while on active duty that is deemed satisfactory service.  Inasmuch as he did not complete the 2-years service remaining obligation, his promotion was never duly constituted. 

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

__cla____  ___wtm _  ___tbr __  DENY APPLICATION

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

INDEX

CASE ID	AR2000038448	
SUFFIX		
RECON		
DATE BOARDED	2000/09/07	
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.