MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 July 2000
	DOCKET NUMBER:   AR2000038484

	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:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Ms. Margaret V. Thompson		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 promoted to the rank of Lieutenant Colonel/O-5 (LTC/0-5) and should be placed on the retired list in that rank and pay grade.

APPLICANT STATES:  He indicated that he was assigned to the Army Reserve Personnel Command (ARPERSCOM) from 1985 to 1992 and served in an O-5 position in the Overseas Strength Branch beginning in 1989.  In October 1992 he was selected for promotion to LTC/0-5 and in October 1992 he was placed in an 0-5 position as an acting branch chief.  He inquired about his promotion and was advised by ARPERSCOM personnel managers that they were not in the business of promoting retirees to enhance their civilian opportunities.  He concludes by indicating that he served over 22 years and earned his rank and deserves to be promoted.

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

On 30 November 1992, he was released from active duty (REFRAD), in the rank and pay grade of Major/0-4, and he was transferred to the United States Army Reserve (USAR) Control Group Retired (Retired Reserve), ARPERSCOM, St. Louis, Missouri.  At the time of his REFRAD the applicant had completed 
20 years, 1 month, and 27 days of active military service.  

The applicant provided a promotion memorandum, dated 8 October 1990, which indicated that he had been selected for promotion to the rank and pay grade of LTC/0-5.  The memorandum also made clear that in order to be promoted the applicant had to be assigned to a duty position authorized a grade equal to or higher than that for which he was selected.  It also advised the applicant that upon reaching his promotion eligibility date (PED) unless assigned to a LTC/0-5 or higher position, he would not be promoted.  

The applicant also provided a duty appointment memorandum, dated 7 October 1992, signed by the Chief of the Combat Arms Division, which indicated that he had been appointed the Acting Chief of the Field Artillery Branch.  He also provides a memorandum, signed by the Chief of the Personnel Services Center, which indicates the applicant had been detailed to the position indicated and that an OER would be required if he served in that position for a period over 90 days. This memorandum, however, does not identify the position as an O-5 position nor does it formally assign the applicant to the position, it simply details him temporarily. 

The applicant’s Department of the Army (DA) Forms 2 and  2-1 (Personnel Qualification Records) indicate that he held the rank of MAJ/0-4 and that he was serving in an O-4 position during his active duty tour in an Active Guard/Reserve (AGR) status.  Section VI of the DA Form 2 (Position Data) shows that he was assigned to a Personnel Manager position which had an authorized grade of MAJ/0-4.  Block 18 of the DA Form 2-1 (Appointments and Reductions) verifies that he was promoted to the rank of MAJ/O-4 on 5 April 1985, and that this is the highest rank to which he was promoted to and served in while on active duty.  In addition, block 35 of the DA Form 2-1 (Record of Assignments) contains no entry verifying that he ever served in an LTC/O-5 position, between 9 December 1985 and 30 November 1992, while serving on his last continuous period of active duty in an AGR status.  

The record contains a Department of Defense (DD) Form 214 (Certificate of Release or Discharge from Active Duty) issued to and signed by the applicant on 30 November 1992.  This document shows that he was placed on the retired list in the rank and pay grade of MAJ/0-4, after completing a total of 20 years, 
1 month, and 27 days of active military service.  The authority for the applicant’s retirement was Army Regulation 635-100, Paragraph 4-13, for length of service retirement.  

Title 10 of the United States Code, section 3911 provides the legal authority for the voluntary length of service retirement of Regular and Reserve commissioned officers.  It states that the Secretary of the Army may, upon the officer's request, retire a Regular or Reserve commissioned officer of the Army who has at least 20 years of service, at least 10 years of which have been active service as a commissioned officer. 

Title 10 the United States Code, section 1370 provides the legal authority for the assignment of commissioned officer retired grade.  It states, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than three years.

Title 10 of the United States Code, section 3964 provides the legal authority for advancement on the retired list.  It states, in pertinent part, that this provision of the law applies only to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty). 

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.  Notwithstanding the applicant’s claim that he successfully served in a LTC/0-5 position and he should have been promoted to that grade, the record shows that he retired for length of service, in the rank and pay grade of MAJ/O-4, after completing just over 20 years of active military service.  

2.  There is no evidence of record that shows that he ever held or served in the rank of LTC/0-5 while on active duty.  A period of time served in an acting capacity does not satisfy this requirement.  Further, by law, a commissioned officer above the rank of MAJ/0-4 must serve on active duty in grade for 3 years in order to be eligible to retire in that grade.  

3.  The Board further determined that the applicant is not eligible for advancement on the retired list.  The law provides no authority for the advancement of commissioned officers on the retired list.  By law, advancement on the retired list is only authorized for warrant officers and enlisted members of the Army.  

4.  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.

5.  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

___gp___  ___mvt__  ___eb___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038484	
SUFFIX		
RECON		
DATE BOARDED	2000/07/18	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/11/30	
DISCHARGE AUTHORITY	AR 635-100 C4	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310 	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.