MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 July 2000
	DOCKET NUMBER:   AR2000038526

	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. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able		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 Captain/0-3 (CPT/0-3) on the retired list.

APPLICANT STATES:  In effect, that he was promoted to CPT/0-3 as evidenced by the enclosed appointment letter and letter order, both dated 12 February 1947 and issued by the Ordnance Department, Aberdeen Proving Ground, Maryland, which he has provided in support of his application.

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

On 30 June 1962, he was released from active duty (REFRAD), in the rank and pay grade of Master Sergeant/E-8 (MSG/E-8), under the provisions of Title 10 of the United States Code, section 3914, by reason of retirement for length of service.

On 12 February 1947 the Ordnance Department at Aberdeen Proving Ground, Maryland, issued an appointment letter and a promotion letter order, pertaining to the applicant.  These documents indicated that he was tendered a terminal leave appointment to CPT/0-3 in United States Army Reserve (USAR) and that he was promoted to that rank in the Army of the United States (AUS), in conjunction with his being separated from active duty as a commissioned officer.  

A War Department (WD) Adjutant General Office (AGO) Form 53-55 (Military Record and Report of Separation-Certificate of Service) on file shows that on 
13 April 1947, the applicant was honorably REFRAD, in the rank and pay grade of 1st Lieutenant/0-2 (1LT/0-2), after completing a total of 4 years, 5 months, and 2 days of active military service in a commissioned officer status. 

The WD AGO 53-55 also shows that on 12 November 1942,  the applicant was appointed a 2nd Lieutenant in the AUS and on 2 October 1943, that he was promoted to 1LT/0-2.  There is no indication in this separation document that the applicant ever actually served on active duty in the rank and pay grade of
CPT/0-3.  On 30 April 1947, the applicant reentered the Regular Army in an enlisted status.

On 15 July 1952, the Reserve Branch of the Adjutant General’s Officer (AGO) completed a memorandum pertaining to the applicant’s USAR commissioned officer status.  They stated that the applicant’s terminal leave appointment in the USAR and promotion in the AUS to CPT/0-3, granted by the Ordnance Department, were erroneous.  In addition, the AGO clarified that the applicant had not been eligible for a terminal leave appointment in the USAR and promotion in the AUS to CPT/0-3 because he had a below minimum efficiency index. 

The AGO memorandum also verified that no commission had ever been issued for the applicant’s appointment or promotion to CPT/0-3.  In view of this, they recommended that his USAR appointment and AUS promotion to CPT/0-3 be cancelled.  Further, they indicated that the applicant’s current USAR rank and pay grade were 1LT/0-2 and that he remained eligible to compete for promotion as an officer in the USAR.

On 23 July 1952, the Adjutant General (AG) of the Army signed and issued a 
2nd endorsement pertaining to the USAR commissioned officer status of the applicant.  In this endorsement, the AG decided that the 12 February 1947 appointment and promotion of the applicant to CPT/0-3 in the USAR, issued by the Ordnance Department, was erroneous.  He further explained that the applicant’s USAR appointment and promotion had been cancelled based on his ineligibility.  This disqualification was due to the applicant’s having an efficiency index below the minimum required for a terminal leave promotion and appointment to CPT/0-3. 

On 7 August 1953, the applicant completed a Department of the Army (DA) Form 71 (Oath of Office) accepting a USAR appointment as a 1LT/0-2, effective 
30 July 1953.  On 1 April 1960, he was promoted to MSG/E-8, which is the highest enlisted rank he held while serving on active duty.

The record contains a Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge), signed by the applicant.  This document shows that on 30 June 1962, the applicant was REFRAD, in the rank and pay grade of MSG/E-8, after completing a total of 21 years, 3 months, and 27 days of active military service.  On 1 July 1962, he was placed on the retired in the rank and pay grade of MSG/E-8.  

As the result of a grade determination review, on 4 March 1971 the applicant was advanced on the retired list to the rank and pay grade of 1LT/0-2, the highest pay grade in which he had satisfactory served on active duty, under the provisions of Title 10 of the United States Code, section 3964. 

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 states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade they held and satisfactorily served in while on active duty.  The legal authority for this action is contained in Title 10 of the Untied States Code, section 3964
(10 USC 3964) which provides the legal authority for the advancement of members on the retired list. 

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 contention of the applicant that he should be advanced on the retired list to the rank and pay grade of CPT/0-3 and reviewed the documents he submitted in support of his request.  However, after carefully evaluating the evidence or record and the independent evidence submitted by the applicant, the Board found no basis for relief in this case.  

2.  The Board noted the USAR appointment and AUS promotion letters, issued by the Ordnance Department, which showed that the applicant was granted a terminal leave USAR appointment and AUS promotion to the rank and pay grade of CPT/0-3.  However, a careful review of the evidence or record shows that these actions were determined to be erroneous by proper authority and that the applicant was made aware of this decision at the time. 

3.  The record contains a WD Form 53-55 that documents the applicant’s active duty commissioned service.  This form shows that he served on active duty as a commissioned officer for 4 years, 5 months, and 2 days, and that he held the rank and pay grade of 1LT/0-2, the highest commissioned grade in which he served on active duty, when he was REFRAD on 13 April 1947.  The information contained on this separation document was certified as correct by the applicant when he authenticated the form with his signature on the date of his separation. 

4.  In addition, the record includes a determination, made by the AG of the Army, that the terminal leave appointment and promotion of the applicant to CPT/0-3, made by the Ordnance Department, were erroneous actions.  The record is also clear in establishing that the applicant was made aware of this finding and advised of his proper USAR status and grade at that time.  This is evidenced by the Oath of Officer, signed by the applicant on 7 August 1953, that directs his appointment as a 1LT/0-2 in the USAR, effective 30 July 1953.

5.  For a member to qualify for advancement on the retired list they must have held and satisfactorily served on active duty in that grade.  This Board concurs with the 1971 grade determination that resulted in the applicant being advanced on the retired list to the rank and pay grade of 1LT/0-2.  The record clearly establishes that this is the highest grade he satisfactorily held and served in while on active duty and that he never held or served on active duty as a CPT/O-3.  Therefore, by law, he is not entitled to be advanced to that rank and pay grade on the retired list. 

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ra ___  ___js ___  __rjw  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038526	
SUFFIX		
RECON		
DATE BOARDED	2000/07/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1962/06/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.