MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 May 2000                   
	DOCKET NUMBER:   AR2000039958

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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:  That he be advanced to the rank and grade of Captain (CPT), 0-3 on the retired list.

APPLICANT STATES:  That he believes he is qualified for advancement to CPT on the retired list.

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

After having had prior enlisted service, he was commissioned a second lieutenant on 5 September 1950.  He was promoted to CPT on 6 April 1956.  He was released from active duty on 31 July 1956.  He reenlisted in the Regular Army on 12 September 1956 and retired on 1 October 1966 in the rank and grade of Sergeant First Class (SFC), E-7.

Title 10, U. S. Code, chapter 369 governs retired grades.  Section 3961 of that title states that the retired grade of a regular commissioned officer who retires other than for physical disability and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability or for nonregular service under chapter 1223 of this title, is determined under section 1370 of this title.  Section 1370 provides that, in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than three years.  An officer in the grade of major or below must have served on active duty in that grade for not less than six months.  Section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  

Army Regulation 15-80 establishes policies, procedures and responsibilities of the Army Grade Determination Review Board (AGDRB).  Paragraph 1.8 states that the AGDRB will consider each case on its own merits and is allowed substantial discretion in reaching its decision.  Determination will be based on the soldier’s overall service in the grade in question, either on active duty or other service qualifying the soldier for service or physical disability retirement, receipt of retired pay or separation for physical disability.  Pertinent circumstances include the length of time in grade and the performance level.

On 31 March 2000, the AGDRB determined that since the applicant did not serve on active duty as a CPT for a period of at least six months he was not qualified to be advanced on the retired list to that rank.  However, the AGDRB determined that the highest grade in which he served satisfactorily for the purpose of computation of retired pay was First Lieutenant, 0-2.

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 the aforementioned requirement.

2.  The applicant served almost four months as a CPT prior to his release from active duty in 1956.  He would have had to have served at least six months on active duty as a CPT before he would have qualified for retirement as a CPT.  The Board concludes that his service as a CPT was not so exemplary as to warrant the Board overturning the AGDRB’s determination and granting the full relief requested.

3.  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

__cmf___  __fe____  __rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039958	
SUFFIX		
RECON		
DATE BOARDED	20000517	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.03	
2.		
3.		
4.		
5.		
6.