MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 November 2000
	DOCKET NUMBER:   AR2000039263

	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:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		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 promoted to the pay grade of E-8 and advanced on the Retired List in that pay grade.

APPLICANT STATES:  In effect, that shortly before he was selected for promotion to the pay grade of E-8, the lock-in time to accept a promotion had been 6 months; however, at the time he was selected for promotion it had been changed to 2 years.  He goes on to state that at the time of his promotion he was notified that he would be reassigned from Fort Knox, Kentucky to Fort Lewis, Washington.  At the time his daughter was graduating from high school and had been accepted at a college in Tennessee near his intended retirement location, so that she could reside at home.  After attempts to have his assignment changed to a more convenient location, he decided to decline the promotion in order to keep from disrupting his family.  He further states that he served in the position of a first sergeant prior to his retirement and that he is not requesting the advancement for monetary reasons and will gladly forego the money for the honor of being retired in the pay grade of E-8.

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

He enlisted on 26 June 1956 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 26 February 1969 and his orders specified that he incurred a 2-year service remaining obligation with the promotion.

On 5 April 1976, Department of the Army Special Orders were published which announced the applicant’s promotion to the pay grade of E-8 effective 1 May 1976.  The orders specified that acceptance of the promotion incurred a 2-year service obligation prior to nondisability retirement.

On 5 May 1976 he submitted a declination of promotion of the pay grade of E-8 at the same time as he submitted an Application for Voluntary Retirement       (DA Form 2339).  He indicated in his declination that he intended to retire on 31 July 1976 and did not want to incur a 2-year service remaining obligation.  He indicated his pay grade at that time as being an E-7.

In his Application for Voluntary Retirement he indicated that he desired to be retired by reason of length of service effective 1 August 1976, that he had declined promotion to the pay grade of E-8, and that the highest rank he had held while serving on active duty was the pay grade of E-7.

His application was approved and on 31 July 1976 he was released from active duty and was placed on the Retired List in the pay grade of E-7, effective 1 August 1976.  He had served 20 years, 1 month and 5 days of total active service.

A review of his Official Military Personnel File (OMPF) shows that he in fact did serve in a first sergeant (E-8) position during his last assignment prior to retirement.  However, there is no indication in the available records to show that he was actually ever promoted to the pay grade of E-8 or that he satisfactorily served in that pay grade prior to his retirement.

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

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.  In order to be advanced to a higher grade on the Retired List, the applicant must have at some time been advanced to a higher grade prior to his being placed on the Retired List.  The applicant has not submitted evidence with his application, and the evidence of record does not contain any evidence to show that he was ever promoted to a higher grade than he held at the time of retirement.  However, the record clearly shows and is further supported by the applicant’s statement, that he declined the promotion to the pay grade of E-8 because he did not desire to serve the 2-year service remaining obligation. Therefore, there is no basis to promote him to a higher grade or to advance him on the Retired List.

3.  While the Board understands the reason for his declining the promotion, there are no provisions for advancing someone on the Retired List to a grade in which they have not previously held or had not satisfactorily served in.  The applicant was afforded the choice of accepting or declining the promotion and he chose to decline it.  Accordingly, the Board finds no error or injustice on the part of the Department 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

___slp___  __mw___  __tlp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000039263	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/14	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV IN GRD	
2.		
3.		
4.		
5.		
6.