MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 October 2000
	DOCKET NUMBER:   AR2000039175

	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. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 Master Sergeant/E-8 (MSG/E-8) on the Retired List. 

APPLICANT STATES:  In effect, that given his active duty service and his time on the Retired List exceeded 30 years in March 1990, he should be advanced to the highest grade he held, which was MSG/E-8.  He claims that he was promoted to MSG/E-8 sometime in 1979 and served in this grade for approximately three months before discovering that he would be required to serve a two year promotion active duty service obligation, at which time he declined the promotion.

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

On 31 March 1980, he was released from active duty (REFRAD), in the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7), under the provisions of chapter 12, Army Regulation 635-200, by reason of retirement for length of service.

On 1 October 1979 Department of the Army (DA) Order Number 275-1 was issued by the Military Personnel Center (MILPERCEN).  This order provided the authority for the applicant’s promotion to MSG/E-8, effective 1 November 1979.

On 30 November 1979, the applicant completed an action declining his promotion to MSG/E-8.  He indicated that he was declining to accept his promotion to MSG/E-8 in order to retire in March 1980.  He also acknowledged that he understood the action would result in his promotion being revoked and further that his name would be removed from the promotion recommended list.  

On 31 March 1980 the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Certificate of Release or Discharge 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 was 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 by submitting a written declination of promotion through command channels not later than 30 days after the effective date of the promotion.  

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. 

Paragraph 12-8 (Promotions) states, in pertinent part, 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.  In addition, it prescribes that soldiers who are promoted to the pay grades of E-7, E-8 or E-9 incur a 2-year service obligation that begins from the effective date of promotion and which must be completed before voluntary retirement.  

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.  The applicant declined his promotion to MSG/E-8, upon the publication of the promotion order.  Accordingly, his promotion was revoked and he was removed from the promotion recommended list by the proper authority.  Therefore, the Board concludes that  there was no error or injustice in this case and that advancement on the retired list is not warranted.

3.  By law and regulation, advancement on the Retired List is only authorized when a member has held and satisfactorily served in a higher pay grade while on active duty.  The applicant declined his promotion to MSG/E-8, under the provisions of the applicable regulation in effect at the time.  This constituted a refusal by him to accept the responsibility to serve on active duty in that rank and pay grade.  Therefore, the Board finds he 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.  

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

____js___  ___rjw __  ___rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039175	
SUFFIX		
RECON		
DATE BOARDED	2000/10/03	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1980/03/31	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.