MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 December 2000
	DOCKET NUMBER:   AR2000044182

	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. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Kenneth L. Wright		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 on the Retired List to the pay grade of E-7.

APPLICANT STATES:  In effect, that he became promotable after his retirement had been approved and he had no choice of staying in or retiring in the pay grade of E-7.

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

He enlisted on 7 August 1973 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 30 July 1979 and on 2 October 1981 he was absent without leave (AWOL) until 7 October 1981.

Although there is no record of nonjudicial punishment in the available records, his records show that he was reduced to the pay grade of E-5 on 15 October 1981 and was again promoted to the pay grade of E-6 on 23 May 1982.

On 22 December 1992, while serving in the pay grade of E-6 as an armor crewman, the applicant submitted a Voluntary Application for Retirement (DA Form 2339) whereas he requested retirement by reason of length of service to be effective 1 September 1993.  He also requested transition leave to begin on 8 June 1993.  His application was approved on the day he submitted it.

On 26 May 1993 orders were published by the Total Army Personnel Command (PERSCOM) announcing the promotion of the applicant to be effective 1 July 1993.  The orders specified that if the applicant was in a nonpromotable status on the effective date of promotion that the orders would be revoked.  It also stated that acceptance of the promotion incurred a 2-year service obligation prior to non-disability retirement.

On 31 August 1993 he was honorably released from active duty and was transferred to the Retired List in the pay grade of E-6 effective 1 September 1993.  He had served 20 years and 24 days of total active service and had 6 days of lost time due to AWOL.

A review of the available records fails to show any evidence to indicate that the applicant was ever promoted to the pay grade of E-7 or that he attempted to withdraw his application for retirement in order to accept the promotion.  His promotion orders were subsequently revoked by the PERSCOM. 

Army Regulation 600-8-19 serves as the authority for enlisted promotions.  It states, in pertinent part, that personnel who have an approved retirement are in a nonpromotable status.

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion 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.  In order to be advanced to a higher grade on the Retired List, the applicant must have at some time been advanced to a higher grade prior to his being placed on the Retired List.  The applicant has not submitted evidence with his application, and the evidence of record does not contain any evidence to show that he was ever promoted to a higher grade than he held at the time of retirement. 

3.  At the time orders were published announcing his promotion to the pay grade of E-7, the applicant had an approved retirement application and thus was in a nonpromotable status.  Accordingly, the applicant’s orders were properly revoked.  Therefore, since he was never officially promoted to the pay grade of E-7 and never satisfactorily served in that grade, there are no provisions for advancing him on the Retired List to a pay grade he never held.  

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

___jph __  __klw ___  __rjw ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044182	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/19	
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.