MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 June 2000
	DOCKET NUMBER:   AR2000039227

	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. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		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 his promotion to sergeant first class/E-7 (SFC/E-7) be reinstated and that he be advanced to SFC/E-7 on the retired list. 

APPLICANT STATES:  In effect, that he thinks it is an injustice that his promotion was revoked and that he was not allowed to retire in the rank of SFC/E7.  He indicates that he served the Army to the best of his abilities and earned the promotion.

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

On 30 September 1978, he retired from the Regular Army after completing 
20 years and 25 days of active military service.  At the time of his retirement the applicant held the rank of SSG/E-6 and served in military occupational specialty 13B (Field Artillery Crewman).

On 1 November 1977, Orders Number 101-1, issued by the United States Army Personnel Command (PERSCOM) indicated that the applicant was promoted to the rank and pay grade of sergeant first class/E-7, effective 1 December 1977; however, this order was revoked on 31 January 1978, via PERSCOM Order Number 13-1 because the applicant was in a non-promotable status as a result of a locally imposed suspension of personnel actions (FLAG).  

As a result of the FLAG action being removed, on 21 July 1978 the applicant was promoted to SFC/E-7 via PERSCOM Order Number 99-1.  On 31 July 1978, in conjunction with his submission of a retirement application, the applicant completed a statement declining the promotion to SFC/E-7, under the provisions of paragraph 7-45, Army Regulation 600-200.  He indicated in this declination action that he was unaware of the July promotion until he began his retirement out-processing and had never worn the rank, or in effect, served in the grade on active duty.  

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in records.  This form verifies that the applicant submitted his request for retirement on 31 July 1978, with his promotion declination, and that he requested a retirement date of 30 September 1978.  On 7 August 1978, the appropriate authority approved his retirement request for 30 September 1978, in the rank of SSG/E-6; and on 15 September 1978, the applicant’s promotion was revoked via PERSCOM Order Number 151-1. 

The applicant’s Department of the Army (DA) Form 2-1 (Enlisted Qualification Record) indicates in block 18 (appointments and reductions) that the applicant attained the rank of SSG/E-6 on 12 August 1968.  There is no indication that the applicant’s promotion to SFC/E-7 was ever made a matter of record or that he ever satisfactorily served in that pay grade while on active duty.

On 30 September 1978, 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 signed by the applicant.  This document shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason of sufficient service for retirement.  In addition, at the time of his REFRAD he held the rank of SSG/E-6 and had completed a total of 20 years and 25 days of active military service.

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 not decline promotion until the promotion was announced in an order.  It also provided, in effect, that a member was required to submit a declination through command channels not later than 15 days after the effective date of the promotion or in the case of individuals who were not promoted with future effective dates within 15 days of official verbal or any other method of official notification.  

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) of the regulation contains guidance on the advancement of soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no provisions for advancement of individuals who held a different rank title if they were retired in the appropriate pay grade.  

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 applicant’s contention that it was an injustice that his promotion to SFC/E-7 was taken away.  However, the Board found this claim lacked merit and that relief is not warranted in this case.

2.  The evidence or record shows that the revocation of the applicant’s promotion to SFC/E-7 was accomplished in accordance with the applicable regulations in effect at the time.  In addition, the action was taken at his own request in conjunction with his desire to process a request for retirement.  

3.  The Board also determined that the applicant was not entitled to advancement on the retired list.  By law and regulation, advancement of soldiers on the retired list is only authorized when a member has satisfactorily served on active duty in a higher pay grade.  The Board concluded that since the applicant declined the promotion to SFC/E-7, and in fact admitted to never serving in the pay grade in his declination request, advancement to that grade on the Retired List is not appropriate. 

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 ____  ___ewl __  ___vbc__  DENY APPLICATION

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

INDEX

CASE ID	AR2000039227	
SUFFIX		
RECON		
DATE BOARDED	2000/06/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1978/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2. 		
3.		
4.		
5.		
6.