MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR2000039870

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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 rank and pay grade of Sergeant First Class/E-7 (SFC/E-7) and that he be advanced to that rank and pay grade on the Retired List.  

APPLICANT STATES:  In effect, that was denied promotion twice after being recommended for promotion while serving in Vietnam in May 1969 and while serving at Fort Lewis, Washington in January 1974.  In 1974 the Army began an up or out policy that required him to apply for retirement for May 1974.  He was identified for promotion on a list that was published in June of 1974, a month after his retirement, and would have been promoted in July 1974.  He was not allowed to return to the Army to accept his promotion.  He was placed in the Mobilization Reserves and stayed in that status for 20 years and aided the local Reserve unit during Desert Storm by assisting families in the area.  He claims that he was promised a rank adjustment after 20 years but was again denied.  He asks that the Board promote him to SFC/E-7 effective the date they approved the action. 

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

On 31 May 1974, he was released from active duty (REFRAD), by reason of length of service retirement, and placed on the retired list as a Staff Sergeant/E-6 (SSG/E-6) after completing 20 years, 11 months, and 9 days of active military service.

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows that he held the rank of SSG/E-6, which he attained on 
15 March 1968.  On 15 May 1974, he verified this data while processing for retirement.  

The applicant’s Military Personnel Records Jacket (MPRJ) is also void of any documents showing that he was ever selected by DA for promotion.  The MPRJ does contain a Department of Defense (DD) Form 214 (Report of Separation From Active Duty), which was authenticated by the applicant with his signature on the date of his REFRAD, 31 May 1974. 

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in his records.  This form verifies that the applicant submitted his voluntary request for retirement on 12 May 1974, and that he requested a retirement date of 31 May 1974.  On 15 May 1974, the appropriate authority approved his retirement request for 31 May 1974, in the rank of SSG/E-6.

The DD Form 214 contained in the record confirms that he was separated, under the provisions of Title 10, United States Code, section 3914 (10 USC 3914), by reason of length of service retirement.  In addition, it verifies that he separated and was placed on the Retired List in the rank and pay grade of SSG/E-6.
On 31 May 1984, subsequent to his REFRAD and placement on the Regular Army Retired List, the applicant was issued Orders Number F-05-009065 by the Army Reserve Personnel Command (ARPERSCOM).  This order, commonly referred to as hip pocket orders, was a vehicle to return the applicant to active duty from the Retired List in the event of full mobilization.  However, it was routinely issued to members on the Retired List and did not authorize a specific period of active duty.

Army Regulation 601-280 (Army Retention Program) sets forth policies and command responsibilities for immediate reenlistment or extension of enlistment of Army soldiers.  Chapter 3 establishes the qualifications for immediate reenlistment.  Table 3-1 (Rank) contains retention control points (RCP) by grade for Army enlisted members and confirms that these RCPs are non-waivable.  This table confirms that the RCP for members serving in the rank and pay grade of SSG/E-6 is 20 years.

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 indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no provisions for advancement of individuals who held a different rank title if they were retired in the appropriate pay grade.  

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 of record shows that the applicant’s voluntarily retirement was accomplished in accordance with the applicable laws and regulations in effect at the time.  There is no evidence to suggest that any RCP rules were violated or that the applicant had attained promotion list status prior to his being REFRAD and placed on the Retired List.  

2.  By law, an enlisted member’s retirement will be in the grade the soldier holds on the date of retirement.  There are no provisions that allow a member to be promoted or advanced on the Retired List based on their attaining promotion list status subsequent to their REFRAD and placement on the Retired List. 
3.  The Board wishes to congratulate and thank the applicant for his voluntary service in support of our Reserve forces during Operation Desert Storm.  However, notwithstanding his being issued mobilization orders, this service alone does not provide basis for his promotion or advancement on the Retired List.

4.  There is no evidence that the applicant ever held or satisfactorily served on active duty in a rank higher than SSG/E-6, which is the rank and pay grade he held on the date he was REFRAD and in which he was placed on the Retired List.  Therefore, the Board concludes that the applicant did not satisfactorily hold or serve in a higher grade while on active duty and that relief is not warranted in this case. 

5.  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.

6.  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

___lds___  __be____  __rvo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039870	
SUFFIX		
RECON		
DATE BOARDED	2000/10/17	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1974/05/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.