MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 October 2000                   
	DOCKET NUMBER:   AR2000038550

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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 his records be corrected to show he retired in the rank and grade of Sergeant Major (SGM), E-9.

APPLICANT STATES:  That he was promoted to SGM; however, he was retired as a First Sergeant (1SG), E-8.

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

That after having had prior service in the U. S. Navy, he enlisted in the Regular Army on 25 May 1950.  He was promoted to Master Sergeant (MSG), E-8 on    20 June 1969 and laterally appointed to 1SG on 20 September 1969.

The applicant departed Walter Reed Army Medical Center on a permanent change of station to Fort Devens, MA with duty station Fort Hamilton, NY on     11 February 1976.

Special Orders 86, Headquarters, Department of the Army dated 3 May 1976 show that the applicant was promoted to SGM effective 1 June 1976 with a date of rank of 17 May 1976.

On 11 June 1976, the applicant completed Application for Voluntary Retirement, DA Form 2339, with a requested retirement date of 1 October 1976.  Item 5 shows his rank and grade as MSG (promotable), E-8.  Item 6 shows his highest grade served on active duty as 1SG.  Item 25 indicated he had incurred a service obligation.  Item 32 (Remarks) indicated the waiver was attached.  The attachment is not available. 

Defense Finance and Accounting Service records show the applicant was paid as an E-9 for June, July and August 1976.  His Leave and Earnings Statement for the month of September 1976 shows he was paid as an E-8 and that the difference in pay between E-8 and E-9 for the months of June, July and August 1976 was collected.

The applicant was released from active duty on 30 September 1976 in the rank of MSG and placed on the retired list on 1 October 1976 in the rank of 1SG.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 states that soldiers who have an approved retirement are in a nonpromotable status.  They will not be promoted unless a request for withdrawal of their retirement application has been approved.  Soldiers who are promoted to pay grades E-7, E-8 or E-9 incur a 2-year service obligation.  This obligation will be from the effective date of promotion.  It must be completed before voluntary retirement.  It also states that soldiers will be required to serve 1 year in their current assignment or at the current duty station, whichever occurs first, before being eligible to retire. 

Title 10, U. S. Code, chapter 369 governs retired grades.  Section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily. 

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.  Orders dated 3 May 1976 show that the applicant was promoted to SGM effective 1 June 1976.  Yet, when the applicant completed his DA Form 2336 on 11 June 1976, he listed his rank and grade as MSG, E-8.  Although finance initially paid him as an E-9, shortly thereafter his E-9 pay was recouped.  From this information the Board concludes that the applicant declined to accept his promotion to SGM so he would be eligible to retire.  The Board presumes that the waiver attached to his retirement application was to waive the 1-year-on-station-prior-to-voluntary retirement rule.

2.  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

__aao___  __mmd___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038550	
SUFFIX		
RECON		
DATE BOARDED	20001026	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.