MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 September 2000
	DOCKET NUMBER:   AR2000039347

	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:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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, promotion to the pay grade of E-8 and advancement on the Retired List in that grade.

APPLICANT STATES:  That he was selected for promotion to the pay grade of E-8 a couple of months prior to his approved retirement date and was told by officials at the Department of the Army (DA) that he could withdraw his retirement, but that he would be removed from the promotion list and would have to compete for promotion again the following year.  He further states that he should have been able to withdraw his retirement and to have been promoted to the pay grade of  E-8. 

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

On 1 September 1981, while serving in the pay grade of E-7, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) in which he requested retirement by reason of length of service to be effective 1 June 1982.  His request was approved on 2 September 1981.

On 28 January 1982 the promotion selection list for the pay grade of E-8 was released and indicated that the applicant had been selected for promotion to the pay grade of E-8 and assigned a promotion sequence number of 02402.

The applicant submitted a request to withdraw his approved application for retirement in order to accept the promotion to the pay grade of E-8.  The entire chain of command provided strong support of his request and it was forwarded to the DA.  Officials at the DA opined that the applicant had an approved retirement and therefore was ineligible to be considered for promotion and therefore his selection was void and his name was removed from the list.  He was also informed that if he still desired to withdraw his approved retirement, he would be considered by the next regularly scheduled promotion board.

The applicant was released from active duty on 31 May 1982 and was placed on the Retired List in the pay grade of E-7 effective 1 June 1982.  He had served 20 years, 4 months and 21 days of total active service. 

Army Regulation 600-200, in effect at the time, provided the policies and procedures for enlisted promotions.  It states, in pertinent part, that  DA will delete, without further board action, the name of any soldier from the recommended list who was considered in error and selected for promotion.

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held on active duty, as determined by the Secretary of the Army, upon completing 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.  The applicant’s contention that he was unjustly denied the opportunity to withdraw his approved retirement in order to accept the promotion to the pay grade of E-8 has been noted by the Board and appears to be without merit.  Had an administrative error not occurred in the applicant’s case, he would not have been considered for promotion, because he already had an approved retirement before the promotion selection board had convened.  Therefore, his selection was erroneous.

3.  Accordingly, he was properly removed from the selection list in accordance with applicable regulations in effect at the time.

4.  Inasmuch as the applicant was not entitled to accept the promotion and since he was never promoted or served on active duty in that pay grade, there is no basis to promote him at this time.

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

__rks ___  ___hof___  __jpi____  DENY APPLICATION

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

INDEX

CASE ID	AR2000039347	
SUFFIX		
RECON		
DATE BOARDED	2000/09/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV ON RET LIST	
2.		
3.		
4.		
5.		
6.