MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 July 2000
	DOCKET NUMBER:   AR2000038584

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 on the Retired List to the rank and pay grade of Master Sergeant/E-8 (MSG/E-8). 

APPLICANT STATES:  In effect, the believes that he was in a MSG/E-8 slot and that he was selected for promotion to MSG/E-8 and was promoted in August 1976, but his promotion was overlooked by personnel officials.  He claims he was paid as a MSG/E-8 from August 1976 until February 1977 and in support of his case, he has enclosed Department of the Army Forms 3686 (Leave and Earnings Statements (LESs) for these months.  

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

On 30 September 1977, he retired from the Regular Army, in the rank of sergeant first class/E-7 (SFC/E-7), after completing 20 years and 15 days of active military service. 

On 6 July 1976, Department of the Army (DA) Order Number 3-1 was issued by the Military Personnel Center (MILPERCEN).  This order provided the authority for the applicant’s promotion to MSG/E-8, effective 1 August 1976. 

On 10 September 1976, the applicant submitted a request to decline his promotion to MSG/E-8.  He cited that as a result of an administrative error he was not promoted to MSG/E-8 on 1 August 1976 and was never afforded the opportunity to decline the promotion within the 15 day time frame required by regulation.  He indicated that it was his intent to retire on 1 October 1977 and he did not intend to remain on active duty beyond that point.  

On 4 October 1976, the Chief of the Enlisted Promotion Section of the MILPERCEN approved the applicant’s request and indicated that his promotion would be revoked via DA Order Number 71-1, dated 12 October 1976.  This order provided the authority to revoke the applicant’s promotion to MSG/E-8, under the provisions of paragraph 7-45, Army Regulation 600-200, based on his request to decline the promotion.  

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of the Department of the Army (DA) Form 2339 (Application for Voluntary Retirement), submitted by the applicant on 20 April 1977.  In this application for retirement the applicant requested a retirement date of 1 October 1977.  

On 30 September 1977, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Report of Separation From Active Duty), which was authenticated by the applicant with his signature.  This form shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200 by reason of retirement.  It further, verifies that he separated and was placed on the Retired List in the rank and pay grade of SFC/E-7.  

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel.  Paragraph 7-45 contained guidance on the declination of promotions to pay grades E-7, E-8, and E-9.  It stated, in pertinent part, that a member could decline promotion within 15 days of being officially notified of the promotion. 

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel.  Paragraph 7-45 contained guidance on the declination of promotions to pay grades E-7, E-8, and E-9.  It stated, in pertinent part, that a member could decline promotion within 15 days of being officially notified of the promotion. 

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.

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 evidence or record shows that the revocation of the applicant’s promotion to MSG/E-8 was accomplished in accordance with the applicable regulations in effect at the time.  In addition, the action was taken at the applicant’s own request in conjunction with his desire to process a request for retirement prior to completing his promotion service obligation.  

2.  By law and regulation, advancement of soldiers on the Retired List is only authorized when a member has held and satisfactorily served in that higher pay grade while on active duty.  The applicant never accepted his promotion to MSG/E-8 and formally declined the promotion under the applicable provisions of the regulation.  In the opinion of the Board, this constituted a refusal to accept the responsibility to serve on active duty in that rank and pay grade.  Therefore, the Board determined the applicant did not satisfactorily hold or serve in the higher grade while on active duty and there is no basis on which to support granting the requested relief in this case.  

3.  Notwithstanding the applicant’s contentions and the LESs he provided in support of his application, the record shows that he declined his promotion to MSG/E-8, upon being officially notified, and that his promotion was revoked accordingly by the proper authority.  Therefore, the Board concluded there was no error or injustice in this case and that advancement on the Retired List is not warranted.

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

__ja ____  __mm___  __jlp ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000038584	
SUFFIX		
RECON		
DATE BOARDED	2000/07/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1977/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.