MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 July 2000
	DOCKET NUMBER:   AR2000039277

	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. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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 Sergeant Major/E-9 (SGM/E-9) on the Retired List.   

APPLICANT STATES:  In effect, that he was promoted to SGM/E-9 in May 1977 with a date of rank of 27 April 1977; however due to domestic problems he was forced to retire on 30 June 1977.  He indicates that he completed his 30 years of combined active service and time on the Retired List on 4 December 1985 and requests to be advanced on the Retired List to SGM/E-9.  He claims that he was diagnosed with heart disease and diabetes, therefore, he hopes a determination could be forthcoming as expeditiously as possible because it would mean a lot to his surviving spouse.  He has enclosed a copy of his promotion order to 
SGM/E-9 in support of his application.

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

On 30 June 1977, he retired from the Regular Army, in the rank of Master Sergeant/E-8 (MSG/E-8),  after completing a total of 22 years, 7 months, and 
12 days of active military service. 

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that on 
31 March 1972, he was promoted to the rank and pay grade of MSG/E-8, which is the highest rank he held while on active duty. 

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of the Department of the Army (DA) Form 2339 (Application for Voluntary Retirement), submitted by the applicant on 23 March 1977.  In this application for retirement the applicant requested a retirement date of 30 June 1977.  

On 1 April 1977, Department of the Army (DA) Order Number 63-1 was issued by the Military Personnel Center (MILPERCEN).  This order provided the authority for the applicant’s promotion to SGM/E-9, effective 1 May 1977.  

However, the record contains a Disposition Form (DF) (DA Form 2496) submitted by the applicant on 9 May 1977.  In this DF the applicant formally declined his promotion to SGM/E-9 under the provisions of paragraph 7-45 of Army Regulation 600-200.  He cited as his reason for taking the declination action, his intent to retire on 30 June 1977, and his wish not to incur the additional service obligation that would result from his accepting the promotion to SGM/E-9.

On 30 June 1977, 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 authenticated by the applicant with his signature.  This form shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200 and Title 10 of the United States Code, section 3914, by reason of length of service retirement.  It further, verifies that he separated and was placed on the Retired List in the rank and pay grade of MSG/E-8.  

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 within 15 days of the effective date of 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.

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 SGM/E-9 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 proceed with his retirement prior to completing his promotion service obligation.  

2.  The Board noted the applicant’s contentions and while empathetic with his medical problems, by law and regulation, advancement of soldiers on the retired list is only authorized when a member has held and satisfactorily served in that higher pay grade while on active duty. 

3.  The record shows that the applicant never accepted his promotion to 
SGM/E-9 and formally declined the promotion under the applicable provisions of the regulation.  In the opinion of the Board, this constituted a refusal to accept the responsibility to serve on active duty in that rank and pay grade.  Therefore, the Board determined the applicant did not satisfactorily hold or serve in the higher grade while on active duty and that his advancement on the Retired List is not appropriate at this time. 

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

___klw __  __sac___  __amc___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039277	
SUFFIX		
RECON		
DATE BOARDED	2000/07/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1977/06/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 319	131.0900	
2.		
3.		
4.		
5.		
6.