MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 June 2000                   
	DOCKET NUMBER:   AR2000039258

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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:  That he be advanced on the retired list to the rank and grade of Sergeant First Class (SFC), E-7.

APPLICANT STATES:  That he served in several E-7 positions and was finally promoted to SFC in 1981.  He held that rank until he retired on 1 January 1982 but was told he could not retain that rank because he had not held it for two years.  

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

After having had prior service, he reenlisted in the Regular Army on 30 April 1970.  His DA Form 2-1, Personnel Qualification Record part II shows that he worked in E-7 positions in all but two assignments from 1974 until his retirement.

On 7 January 1981, the applicant requested retirement to be effective 1 January 1982.  His request was approved at Fort Riley, KS on 21 April 1981.

Orders 82-1, U. S. Army Military Personnel Center (USAMILPERCEN) dated      1 June 1981 show that the applicant was promoted to SFC effective 1 July 1981. The orders state “ Promotion is not valid and it will be revoked if the soldier concerned is not in a promotable status on the effective date of promotion.”  

Orders 137-1, USAMILPERCEN dated 2 September 1981 revoked USAMILPERCEN Orders 82-1.

Finance records at the Defense Finance and Accounting Service show that the applicant’s finance records had been changed in July 1981 to reflect his promotion to SFC and changed again in November 1981 to reflect the revocation of his promotion orders.  

On 1 January 1982, the applicant retired in the rank and grade of Staff Sergeant, E-6.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In pertinent part it states 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.  Soldiers who are promoted to grades E-7, E-8 and E-9 incur a 2-year service obligation.  This obligation will be from the effective date of promotion.  It must be completed prior to voluntary retirement.

Title 10, U. S. code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.
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.  Orders were issued on 1 June 1981 promoting the applicant to SFC.  However, the promotion was invalid.  His request for retirement had been approved in April 1981, thus placing him in a nonpromotable status.  His promotion orders clearly stated that the promotion was not valid and it would be revoked if he was not in a promotable status on the effective date of promotion.  The applicant’s unit erred if it actually pinned SFC stripes on him and he erred if he accepted and wore those stripes.  

3.  Since finance records verify that the applicant’s promotion to SFC had been revoked and he did not hold that rank upon his retirement, he was properly retired in the rank and grade of Staff Sergeant, E-6.  Since he never validly held the rank of SFC, it is not appropriate to advance him to that rank 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

__lls___  __aao___  __ra____  DENY APPLICATION

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

INDEX

CASE ID	AR2000039258	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.