MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 October 2000
	DOCKET NUMBER:   AR2000039945

	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. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 Captain/O-3 (CPT/0-3) on the Retired List. 

APPLICANT STATES:  In effect, that his retired rank and pay grade should be changed from Master Sergeant/E-8 (MSG/E-8) to CPT/0-3.  He claims that an adjustment to his pay grade for retirement purposes should have been made by the Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri on his 30th anniversary, which was 23 June 1993.  He indicates that he retired as a MSG/E-8 in 1984 but was placed on the Retired List as a CPT/0-3 based on his dual component status.  

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

On 31 July 1984, he was released from active duty (REFRAD) after completing 
21 years, 1 month, and 7 days of active military service.  At the time of his separation the applicant held the rank of MSG/E-8.

On 5 April 1978, while serving in the Regular Army (RA) on active duty in the rank of Sergeant First Class/E-7 (SFC/E-7), the applicant was appointed an Infantry 1st lieutenant in the Individual Ready Reserve (IRR) of the United States Army Reserve (USAR).  

On 4 April 1982, he was promoted to the rank of CPT/0-3 in the IRR of the USAR, while serving as a MSG/E-8 on active duty in the RA.  CPT/0-3 was the highest officer rank the applicant attained while serving in a dual status and was the USAR officer rank he held on the date of his retirement.  

The applicant’s Department of the Army (DA) Form 2-1 (Enlisted Qualification Record) indicates in block 18 (appointments and reductions) that the applicant attained the pay grade of E-8 on 1 August 1982.  Notwithstanding the applicant’s dual status, the record confirms that he never held a higher grade while serving on active duty.  The record also verifies that all of his commissioned USAR service was performed in the inactive IRR and that he never served on active duty in a commissioned officer status.

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in records.  This form verifies that he submitted his request for retirement on 5 October 1983, with a requested a retirement date of 31 July 1984.  On 28 February 1984, the appropriate authority approved his retirement request for 31 July 1984, in the rank of MSG/E-8. 

On 31 July 1984, the applicant was honorably released from active duty (REFRAD).  The record includes a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty), which was authenticated by the applicant with his signature on the date of his REFRAD.
The DD Form 214 shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason length of service retirement.  It also verifies that on the date of his REFRAD he was a MSG/E-8, and that he was placed on the Retired List in that rank and pay grade on the day following his REFRAD, 1 August 1984.

Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers.  It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. 

Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List.  It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 
30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.

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) of the regulation contains guidance on the advancement of enlisted 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 of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.  

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 never served on active duty as a commissioned officer.  Rather he held a dual status as a commission officer in the IRR of the USAR and as an enlisted member of the RA on active duty.  

2.  By law, a commissioned officer must hold and serve in their rank, on active duty, for a minimum of six months before they can be placed on the Retired List in that grade.  Therefore, since the applicant never served on active duty as a commissioned officer, the Board finds no basis on which to place him on the Retired List as a CPT/0-3.

3.  The record reveals that the applicant retired in the highest rank he held and in which he satisfactorily served while on active duty.  Therefore, the Board concludes that he was appropriately placed on the Retired List as MSG/E8, which is the rank and pay grade he held on the date of his retirement. 

4.  Advancement on the Retired List is limited to enlisted members and warrant officers of the Army and is only authorized when the member has satisfactorily served on active duty in a higher pay grade.  The applicant’s dual status commissioned officer service in the IRR of the USAR does not fulfill this active duty satisfactory service requirement.  Therefore, the Board concludes the requested 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

___js____  ___rjw __  ___rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039945	
SUFFIX		
RECON		
DATE BOARDED	2000/10/03	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1984/07/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.