MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           12 September 2000
	DOCKET NUMBER:   AR2000038755

	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:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		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:  Advancement on the Retired List to the pay grade of O-3E effective 9 January 1997.

APPLICANT STATES:  In effect, that he served in an enlisted status from 9 January 1967 until he was commissioned on 15 January 1968.  He then served as a commissioned officer until 17 January 1974 when he was released from active duty (REFRAD) in the rank of Captain (O-3).  He goes on to state that he then enlisted on 18 January 1974 and remained on active duty until he retired in the pay grade of E-9 after completing 29 years, 7 months, and 22 days of total active service.  He also states that he was subsequently advanced on the Retired List to the pay grade of O-3; however, he believes that he should have been advanced to the pay grade of O-3E based on his having completed over 4 years of enlisted service. 

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

He enlisted in the Regular Army on 9 January 1967 and served in an enlisted status until he was discharged on 14 January 1968 upon graduation from Officer Candidate School (OCS) to accept a Reserve commission as a second lieutenant with a concurrent call to active duty.  He was promoted to the rank of Captain  (O-3) on 15 January 1970.

He continued to serve as a commissioned officer until he was REFRAD in the rank of captain on 17 January 1974 due to a reduction in force.

He again enlisted in the Regular Army on 18 January 1974, in the pay grade of E-5 for a period of 4 years and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-9 on 1 July 1988 and continued to serve until he was REFRAD on 31 August 1996 and was transferred to the Retired List in the pay grade of E-9, effective 1 September 1996.  He had served 29 years, 7 months, and 22 days of total active service.

On 17 July 1997 the Army Reserve Personnel Center notified the applicant that he had been advanced on the Retired List to the rank of Captain effective 9 January 1997, the highest active duty rank he held while on active duty.

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).

The Department of Defense Military Pay and Allowances Entitlements Manual provides the statutory provisions for military pay and allowances.  It states, in pertinent part, that officers in the pay grades of O-1 through 0-3 who have served over 4 years of active service as an enlisted member are entitled to a special rate of pay for O-1E, O-2E and O-3E. 

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.  The applicant was properly advanced on the Retired list to the pay grade of O-3 based on the fact that it was the highest pay grade he had served in while on active duty.  He did not have over 4 years of enlisted service at the time he served in that pay grade and therefore he is not entitled to add his subsequent enlisted service after the fact to increase his entitlements in that pay grade.

3.  In short, his advancement was based on his entitlement as a Captain while he was serving on active duty and not any service thereafter unless he returned to active duty as a commissioned officer before being placed on the Retired List. 

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

__cs____  ___fe ___  ___cmf__  DENY APPLICATION

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

INDEX

CASE ID	AR2000038755	
SUFFIX		
RECON		
DATE BOARDED	2000/09/12	
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.