MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            19 October 2000
	DOCKET NUMBER:   AR2000044544

	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	
	Ms. Juanita I. Williams		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz		Chairperson	
	Ms. Tracey L. Pinson 		Member	
	Mr. Christopher J. Prosser		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, correction of his records to show he was retired in the grade of sergeant first class (SFC) (E-7) vice staff sergeant (SSG) (E-6).

APPLICANT STATES:  That the wording in Army Regulation 635-200, paragraph 12-6a is vague, extremely contradictory and muddled.  Further, the United States Code (USC) (specifically Title 10, USC, section 3963) clearly states that he met all requirements needed to retire under section 3914; however, he continues to be told he does not qualify for retirement at the rank of SFC.  Also, he states that he held the grade of SFC (E-7) from December 1986 to July 1991; and that he took a voluntary reduction to SSG (E-6) to finish his “full time tour.”  He further states that his active duty service plus National Guard and Reserve service totaled 30 years in July 1999.  

EVIDENCE OF RECORD:  The applicant's Official Military Personnel File is not available; however, the applicant has submitted pertinent documents from his military records which show: 

His initial enlistment was in the Regular Army from 30 January 1962 through 29 January 1965.  He was honorably released from that period of active duty and transferred to the United States Army Reserve (USAR) to complete his military service obligation.  He entered active duty again on 27 December 1974 and served until 26 July 1981 when he was honorably discharged.  At that time he had completed 9 years and 7 months of active duty and was credited with 
3 years of inactive service.  

Effective 2 April 1985 while serving in the grade of SSG, the applicant was ordered by his Army National Guard unit to full time duty in Active Guard/Reserve (AGR) status for a period of 36 months (2 April 1985 through 1 April 1988).  While on that tour, his National Guard unit published orders promoting him to SFC.  On 7 December 1987 his unit ordered him to another 36-month (2 April 1988 through 1 April 1991) full time active duty tour in the rank of SFC.  He remained on active duty continuously until  30 June 1995.  Apparently, as the applicant indicates in his application, he was administratively, voluntarily reduced from SFC (E-7) to SSG (E-6) in order to complete his last AGR tour, most likely due to the lack of an E-7 position.  Orders dated 1 July 1991 published by Headquarters, 111th Air Defense Artillery Brigade, New Mexico Army National Guard confirms this reduction.  

On 30 June 1995 he was retired from active duty after completing 10 years, 2 months, and 29 days continuous active duty through AGR tours, and 9 years, 
9 months, and 3 days prior active duty, for a total of 20 years and 2 days total active service.  He was also credited with 6 years and 17 days inactive service at that time.  He was retired in the grade of SSG (E-6), the grade in which he was serving on that date and was placed on the retired list the following day.  

The regulatory authority for his retirement shown on his separation document is Army Regulation 635-200, chapter 12.  The statutory authority for his retirement (Title 10, USC, section 3914) provides, pertinently, that “under regulations prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service…may, upon his request, be retired.”

Army Regulation 635-200, chapter 12, paragraph 12-3b, provides that retirement “will be in the regular or reserve grade the soldier holds on the date of retirement.”  The statutory provision (10 USC 3961(b)) provides that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.  (Subsection (a) is applicable to Army officers).    

Paragraph 12-6a of the same regulation states “[A]s used in this paragraph, active duty means full-time duty in active military service of the United States.  It includes full time training duty and annual duty, but does not include full-time National Guard duty (10 USC 101(22).  Active service means service on active duty or full time National Guard duty (10 USC 101(24).”  

Section 101 of Title 10 (Definitions) defines certain terms used in that title, each of which is numbered.  The above numbers (22) and (24) refer to definitions numbered 22 and 24 appearing in that section.  Definition Number 22 defines the term “active duty” essentially as set forth in paragraph 12-6a, Army Regulation 
635-200.  Definition Number 24 defines the term “active service,” which is defined as “service on active duty or full-time National Guard duty.”  

Title 10, USC, section 3963 (Highest grade held satisfactorily; Reserve enlisted members reduced in grade not as a result of the member’s misconduct) provides, generally, for the retirement of subject soldiers in the highest enlisted grade in which the soldier served on active duty satisfactorily as determined by the Secretary of the Army.  Subsection “c” of this law states:  “This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after (underscoring added) September 30, 1996.”

Title 10, U.S.C., section 3964 (Higher grade after 30 years of service: warrant officers and enlisted members) provides, pertinently, that each retired member of the Army covered by subsection (b) who is retired with less than 30 years of 
active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty) satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

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.  While one may easily be confused by the terminology used in paragraph 
12-6a of Army Regulation 635-200, as well as by the fine line of distinction made between “active duty” and “active service” set forth in 10 USC 101, for all intents and purposes of this case, the terms and their definitions are irrelevant.  

2.  The fact of the matter is the applicant was voluntarily retired under the provisions of 10 USC 3914 for length of service (20 years).  However, this authority did not establish or authorize his retired grade.  

3.  On the date of his retirement, he was serving in the grade of SSG (E-6) and was properly retired in that grade in accordance with regulatory (Army Regulation 635-200, paragraph 12-3b) and statutory (10 USC 3961) provisions, which provide that “retirement will be in the regular or reserve grade the soldier holds on the date of retirement.“ 

4.  The provisions of 10 USC 3963 (highest grade held satisfactorily; reserve enlisted members reduced in grade not as a result of the member’s misconduct) did not authorize the applicant’s retirement in the grade of SFC (E-7), as this law clearly states “this section applies with respect to reserve enlisted members who are retired under section 3914 of this title after September 30, 1996.”  The applicant retired on 1 July 1995.   

5.  It appears the applicant will be eligible under the provisions of 10 USC 3964 to be advanced on the retired list to SFC (E-7) when his active service (20 years and 2 days) plus service on the retired list totals 30 years.  Having retired in 1995 with 20 years and 2 days of active service, this should occur in the year 2005. The decision will be made by the Army Grade Determination Review Board.  The applicant should re-establish contact with the Department at that time.  His 
6 years and 17 days of inactive service are not creditable for the purpose of determining the date of his advancement on the retired list.

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

___EWL__  ___TLP__  ___CJP__  DENY APPLICATION

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

INDEX

CASE ID	AR2000044544	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001019	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1`	186	
2.	306	
3.	319	
4.		
5.		
6.