MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 November 2000
	DOCKET NUMBER:   AR2000040889

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Ms. Barbara J. Ellis		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 his promotion to the pay grade of E-8 be reinstated and that he be placed on the Retired List in that pay grade.

APPLICANT STATES:  In effect, that the highest grade he held while on active duty was the pay grade of E-8 and that he should have been retired in that pay grade. 

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

The applicant enlisted in the Marine Corps on 10 July 1963 and served until he was honorably released from active duty (REFRAD) on 30 June 1967 and was transferred to the Marine Corps Reserve (USMCR).  He served in the USMCR until 31 May 1976 when he was discharged to enlist in the Army National Guard.

He enlisted in the New Jersey Army National Guard (NJARNG) on 1 June 1976 and continued to serve through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 March 1980 and on 1 April 1985, he was promoted to the pay grade of E-8.

On 1 April 1988, he accepted a voluntary reduction to the pay grade of E-7 to accept an Active Guard/Reserve AGR position in the NJARNG.  

On 6 March 1996 he submitted a request for voluntary retirement (DA Form 2339) in which he requested retirement for length of service to be effective 30 April 1996.  He indicated at that time that the highest grade in which he served on active duty was the pay grade of E-7.  

His request was approved and he was honorably REFRAD on 30 April 1996 and was placed on the Retired List in the pay grade of E-7 effective 1 May 1996.  He had served 24 years of total active service.

Title 10, U.S. Code, section 3963, as amended by the National Defense Authorization Act for FY 1997, provides, in effect, that a full-time Reserve or National Guard member who is retired under section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily, as determined by the Secretary of the Army upon completion of 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired) and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired list in behalf of the Secretary, for those who have attained 30 years of service.  It also provides that Reserve or full-time National Guard members who at the time of retirement are serving on active duty in a grade lower than the highest grade held by the member on active duty and were previously administratively reduced in grade not as a result of the member’s own misconduct, will be retired in the highest grade served on active duty at the time of retirement, provided that they retired after 30 September 1996. 

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 applicant was promoted to the pay grade of E-8 while serving on active duty in the AGR Program and subsequently accepted a voluntary administrative reduction in grade (to pay grade E-7) to accept another AGR vacancy.  Therefore, in accordance with the laws in effect at the time, the applicant was required to be retired in the pay grade of E-7.

2.  Although the law was changed 4 months after the applicant’s retirement, to allow for members in the AGR Program who accepted voluntary reductions in grade to accept a position, to retire in the highest grade satisfactorily served, it did not apply to the applicant.  However, it does not preclude the applicant from being considered for advancement on the Retired List once he has a total of 30 years of active service and service on the Retired List. 

3.  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.

4.  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

___jlp ___  __owt___  ___bje __  DENY APPLICATION

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

INDEX

CASE ID	AR2000040889	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400/HI GRD HELD	
2.		
3.		
4.		
5.		
6.