MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 August 2000
	DOCKET NUMBER:   AR2000039246

	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. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 Captain/0-3 (CPT/0-3) on the Retired List.

APPLICANT STATES:  In effect, that he feels he is entitled to be advanced to 
CPT/0-3 on the Retired List and possibly more pay.  He indicates that he served in the Army for 20 years and retired on 29 February 1960.  He claims that during his 20 years of service he was promoted to the rank and pay grade of First Lieutenant/0-2 (1LT/0-2) sometime in 1953.  He indicates that in 1960 he retired in the enlisted rank and pay grade of Master Sergeant/E-8 (MSG/E-8).  He also comments that he served in the United States Army Reserve (USAR) and was promoted to the rank of Captain/0-3 (CPT/0-3) during those years in the USAR.  

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

On 29 February 1960, he was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 3914, by reason of length of service retirement.  At the time of his REFRAD, the applicant had completed a total of 20 years, 1 month, and 12 days of active military service and held the rank of MSG/E-8.  On the day following his REFRAD, the applicant was placed on the Retired List in that enlisted rank and pay grade. 

The applicant’s record includes a letter, dated 16 April 1956, issued by the Adjutant General of the Army, which indicates that on 14 April 1956 he was promoted to the rank and pay grade of CPT/0-3 in the USAR.  This letter also makes very clear that at the time of this USAR promotion to CPT/0-3 the applicant was serving on active duty in an enlisted status as a MSG/E-8.

A Statement of Service Enlisted Personnel Retirement Form (AGPZ Form 27), dated 3 February 1960, which was prepared during the applicant’s retirement processing is on file in the service record.  This document verifies that the applicant had served on active duty as a commissioned officer on two separate occasions.  The first  from 18 January 1945 until 20 October 1945, at which time he was REFRAD as a Second Lieutenant/0-1 (2LT/0-1).  The second from 
20 September 1951 until 11 January 1954, when he was REFRAD as a 1LT/0-2. 

On 19 January 1960, the applicant submitted a Department of Defense (DD) Form 210 (Application for Retirement).  This form verifies that the applicant requested to be retired on 29 February 1960 in the rank and pay grade of MSG/E-8.  This retirement application also indicates that the highest rank the applicant held while on active duty was 1LT/0-2.  On 20 January 1960, the appropriate authority approved the applicant’s retirement for 29 February 1960, in the rank of MSG/E-8.

The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to and signed by the applicant on the date of his REFRAD is included in the evidence or record.  This document confirms that the applicant was REFRAD on 29 February 1960, in the rank of MSG/E-8, and that he was placed on the Retired List in that rank and pay grade on the day following his REFRAD.  

On 24 June 1970, as a result of his own request, the applicant was advanced on the Retired List to the rank and pay grade of 1LT/0-2.  This advancement action was accomplished by order of the Adjutant General of the Army and authorized under the provisions of Title 10 of the United States Code, section 3964.  However, on 19 November 1970, again based on the written request of the applicant, he was restored to his former enlisted retired grade of MSG/E-8 on the Retired List, under the provisions of Title 10 of the United States Code, section 3965.

Title 10 of the United States Code, section 3964 provides the legal authority for the advancement of warrant officers and enlisted retired members of the Army to be advanced on the Retired List.  It states, in pertinent part, that these members who are retired with less than 30 years of active service are entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  

Title 10 of the United States Code, section 3965 provides the legal authority for the restoration to former grade of retired warrant officers and enlisted members of the Army.  It allows that each retired warrant officer or enlisted member of the Army who has been advanced on the retired list to a higher commissioned grade under section 3964 of this title, and who applies to the Secretary of the Army within three months after his advancement, shall, if the Secretary approves, be restored on the retired list to his former warrant officer or enlisted status, as the case may be. 

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 he should be advanced to CPT/0-3 on the Retired List and understands how he might have that impression given he was promoted to that rank in the USAR.  However, after carefully evaluating the evidence or record and the independent evidence submitted by the applicant, the Board found there is no basis for the requested relief in this case.  

2.  By law, in order for eligible members to qualify for advancement on the Retired List they must have held and satisfactorily served on active duty in that rank and pay grade.  This Board does concur with the June 1970 action that advanced the applicant on the Retired List to the rank and pay grade of 1LT/0-2, and with the November 1970 action which restored him to his previous enlisted rank and pay grade of MSG/E-8 on the Retired List.  The record clearly establishes that the applicant successfully served on active duty as 1LT/0-2 and that he initially retired in an enlisted status as a MSG/E-8.  

3.  However, the evidence of record also makes very clear the fact that the applicant’s promotion to CPT/0-3 was in the USAR.  In addition, it is equally evident that the applicant never held or served on active duty in that rank and pay grade.  Therefore, by law, the applicant is not entitled to be advanced to the rank and pay grade of CPT/0-3 on the Retired List.

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

___mvt __  __kwl ___  __elw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039246	
SUFFIX		
RECON		
DATE BOARDED	2000/08/22	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1960/02/29	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.