MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 September 2000
	DOCKET NUMBER:   AR2000040317

	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. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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, advancement on the Retired List to the pay grade of E-8.

APPLICANT STATES:  That in November 1977 his wife was diagnosed with a brain tumor which required surgery and chemotherapy.  In October 1978 the tumor reappeared and she again underwent surgery and chemotherapy. On 1 May 1979 he received orders promoting him to the pay grade of E-8; however, due to his wife’s condition at the time he declined the promotion because he could not devote the time and dedication necessary to be a good first sergeant and at the same time give his family the care they needed.  He goes on to state that in the summer of 1979 he was made aware that his wife’s condition was terminal and received a compassionate reassignment to Fort Chaffee, Arkansas so that his wife could be near her family.  He further states that he was reassigned in May of 1980 and his wife died in August 1980.  He subsequently retired in order to care for his daughters.  He requests that the Board consider his request favorably. 

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

On 2 April 1979, while stationed in Hawaii, orders were published by the Department of the Army announcing the applicant’s promotion to the pay grade of E-8 effective 1 May 1979.  The orders specified that acceptance of the promotion incurred a 2-year service obligation prior to non-disability retirement.

On 25 May 1979 the promotion orders were revoked.

In May 1980 the applicant received a compassionate reassignment to Fort Chaffee due to his wife’s terminal condition.  His wife passed away on 30 August 1980 and on 1 October 1980 he requested retirement for length of service as an exception to policy, effective 1 December 1980.  His request was approved on 30 October 1980.

On 30 November 1980 he was released from active duty (REFRAD) and was transferred to the Retired List in the pay grade of E-8 effective 1 December 1980. He had served 20 years and 19 days of total active service.

Title 10, United States Code, Section 3964, 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.  While the Board is sympathetic to the loss of his wife and the hardships he and his family were undergoing at the time, he declined the promotion and there are no provisions for advancing someone on the Retired List to a pay grade that was never satisfactorily held.  Accordingly, there is no basis for advancing the applicant to the pay grade of E-8 at this time.

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

___mm__  ___tb____  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040317	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/09/26	
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.