MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 October 2000
	DOCKET NUMBER:   AR2000041194

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Jaime Perez		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 Sergeant Major/E-9 (SGM/E-9) on the Retired List. 

APPLICANT STATES:  In effect, that he should be advanced to SGM/E-9 on the Retired List based on his having performed duties as the Operations SGM of the 2nd Brigade of the 3rd Armored Division.  He encloses a letter from his Brigade Commander at the time which he claims attests to his satisfactory service as SGM/E-9.  He claims that had this factor been considered by the proper authority during his discharge processing at Fort Meade, Maryland he would be eligible for advancement based on satisfactory service in the rank and pay grade. 

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

On 30 June 1972, he was released from active duty (REFRAD) in the Regular Army (RA), by reason of length of service retirement, in the rank of Master Sergeant/E-8 (MSG/E-8), after completing 20 years and 16 days of active military service. 

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) indicates, in block 23 (Appointments and Reductions), that the applicant attained the rank of MSG/E-8 on 6 December 1969.  There is no indication that he was ever promoted to or held a higher grade while serving on active duty.  Block 38 (Record of Assignments) does verify that he served as the Operations Sergeant of the 2nd Brigade of the 3rd Armored Division; however, it also confirms that he filled this position as a MSG/E-8.

The Brigade Commander letter provided by the applicant in support of his application is dated 28 January 1970.  It is a promotion recommendation that verifies the applicant was serving as the Operations Sergeant and is highly complimentary of the applicant’s performance of duty.  However, It does not indicate that the position was required to be filled by a SGM/E-9 or even that the authorized grade for the position was E-9.  

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 request for retirement on 28 January 1972 and that he requested a retirement date of 30 June 1972.  On 31 January 1972, the appropriate authority approved his retirement request for 30 June 1972, in the rank and pay grade of MSG/E-8.

On 30 June 1972, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which was authenticated by the applicant with his signature.  

The DD Form 214 also shows that he was separated, under the provisions of Title 10, United States Code, section 3914, by reason of length of service retirement.  Further, it verifies that on the date of his REFRAD, 30 June 1972, the applicant was serving as a MSG/E-8, and that on the following day he was placed on the Retired List in that rank and pay grade.

In July 1973, subsequent to his REFRAD and placement on the RA Retired List, the applicant was transferred from the Retired Reserve to the Ready Reserve, under a grant of indispensability from the Secretary of the Army, in order to perform duties in the rank of MSG/E-8.  During his tenure in the USAR he was promoted to the rank of SGM/E-9 on 5 May 1977 and on 15 January 1979, he was released from the USAR Ready Reserve and reverted to his RA Retired List status as a MSG/E-8.

Title 10 of the United States Code, section 3914 provides the legal authority for an enlisted member of the Army who has at least 20, but less than 30 years of service, to retire upon their request.  Section 3961 of Title 10 provides the general rule for the proper assignment of a retired grade.  It states, in pertinent part, that a RA member who retires other than for physical disability retires in the grade they hold on the date of retirement. 

Title 10 of the United States Code, section 3964 contains the legal authority for the advancement of enlisted members on the Retired List.  It states, in pertinent part, that an enlisted member who is retired with less than 30 years of active service is 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 as determined by the Secretary of the Army.  

The advancement law provides no provisions for any member of either the RA or the Reserve Components to be advanced on the Retired List based on service in the USAR.  Section 3966 of Title 10 provides the law governing the maintenance of Retired Lists.  It directs that the Secretary of the Army shall maintain a Retired List containing the name of each retired enlisted member of the RA.

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 Board noted the applicant’s contention that he should be advanced on the Retired List based on his satisfactory service as the Operations SGM for the 2nd Brigade of the 3rd Armored Division.  However, this factor does not provide a valid basis for relief. 

2.  By law and regulation, an enlisted member retires in the rank and grade they hold on the date they are REFRAD.  Advancement on the Retired List is only authorized when a member has satisfactorily served in a higher pay grade while on active duty.  A member must have been promoted to and held a higher rank in order to receive a satisfactory service determination, performing duties in a position calling for a higher grade does not satisfy this requirement and does not warrant advancement on the Retired List.  

3.  The Board noted the applicant was promoted to the rank of SGM/E-9 while serving in the USAR Ready Reserve.  Although he did not request advancement on the Retired List based on his holding a higher rank and pay grade in the Ready Reserve, the Board wishes to confirm that the law also does not allow for members to be advanced on the Retired List based on USAR promotions attained and service performed subsequent to their being placed on the RA Retired List. 

4.  Notwithstanding his USAR promotion to SGM/E-9, the Board finds no evidence that the applicant ever held or satisfactorily served on active duty in a rank higher than MSG/E-8, 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.  Thus, the Board concludes that the applicant did not satisfactorily serve in a higher pay grade while on active duty and therefore, there is no basis on which to support advancing him to SGM/E-9 on the Retired List.  

5.  In order to justify correction of a military record the applicant must show to he 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

___eja __  __jp ____  __slp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041194	
SUFFIX		
RECON		
DATE BOARDED	2000/10/05	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1972/06/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.