MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 January 2001
	DOCKET NUMBER:   AR2000045007

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 retirement rank and pay grade be changed from sergeant/E-5 (SGT/E-5) to staff sergeant/E-6 (SSG/E-6).

APPLICANT STATES:  In effect, that he was told by an Inspector General (IG) that the rule for retirement rank and grade was that it would be the last grade held honorably for a year.  He indicates that he was reduced to SGT/E-5 for misconduct on 9 February 1999 and he was released from active duty (REFRAD) for the purpose of retirement some 356 days later on 31 January 2000.  He also comments that he was promoted to SSG/E-6 on 24 April 1986, which means he spent well over 12 years serving in that rank and at least 11 of those years were honorable.  

The applicant also claims that due to administrative problems, the most major of which was his Military Personnel Records Jacket (MPRJ) being forwarded to Fort Huachuca, Arizona in January 1999, he was never allowed to attempt to regain his rank during his last year of service.  He states that he was unfortunately unable to find any promotion eligibility reports to support this claim or he would have provided them to the Board.  In addition, in April 1999 he was informed that he had been dropped off the personnel database and this led to many other personnel action related problems prior to his retirement, not the least of which was his not being added to the promotion eligibility report.  Finally, he claims that at no time was he either verbally or in writing advised that he had been removed from a promotion eligible status and was in fact encouraged to prepare for promotion boards by two noncommissioned officers (NCOs) in his unit.  He includes statements from his former Commander (CDR) and First Sergeant (1SG) attesting to the administrative problems he experienced.

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

On 31 January 2000, he was REFRAD, by reason of retirement, after completing 20 years and 27 days of active military service.  On the date of his separation the applicant held the rank and pay grade of SGT/E-5, which is the rank and pay grade in which he was placed on the Retired List.

There is a Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty) on file, which was authenticated by the applicant with his signature on the date of his separation.  This document confirms that he was REFRAD on 31 January 2000 after completing 20 years and 27 days of active military service.  It also verifies that he held the rank and pay grade of SGT/E-5 on the date of his separation and that he was separated under the provisions of chapter 12, Army Regulation 635-200, by reason of retirement.  

The applicant’s record confirms that subsequent to the applicant’s reduction to SGT/E-5 his date of rank was established as 9 February 1999.  There is no indication he was ever recommended for promotion or that he attained promotion standing list status for promotion to the next higher grade subsequent to his reduction during his last year of service.  

The statements from his former CDR and 1SG, which were provided by the applicant, confirm that his records were misplaced and he was dropped from the database, which resulted in his name never appearing on a promotion eligibility report.  However, neither statement addresses what if any action was taken by either the applicant or members of his chain of command in regard to resolving his promotion eligibility problems while he was still on active duty. 

Army Regulation 600-8-19 sets forth the basic authority for the promotion of enlisted personnel.  Paragraph 1-10 provides the reasons for placing members in a nonpromotable status.  It states, in pertinent part, that a member who has insufficient time remaining to complete the promotion service remaining obligation for promotion to SSG/E-6 is ineligible for promotion and it further states that a member with an approved voluntary retirement application is also in a nonpromotable status. 

Chapter 3 of the enlisted promotion regulation provides the policy for the semi-centralized promotion system and governs the SGT and SSG promotion system. Table 3-4 provides the eligibility criteria for promotion to SSG and indicates that eight months time in grade is necessary prior to a member being allowed to appear before a promotion selection board and that a soldier must be eligible to reenlist.  Paragraph 3-37 provides the rules for processing promotion point cut-off scores and states, in pertinent part, that a soldier will be eligible for promotion on the first day of the second month following the selection month.  For example if a soldier were selected by a promotion board in January 1999 they would become eligible for promotion on 1 March 1999.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).  

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty. 

10 USC 3961 (General Rule-Retirement Grade) provides the legal authority and general rule for the proper assignment of a retired grade.  It states, in pertinent part, that a Regular Army member who retires other than for physical disability retires in the grade they hold on the date of retirement. 

10 USC 3964 (Advancement on the Retired List) 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.  

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 contentions that he should have been placed on the Retired List in the rank and pay grade of SSG/E-6 and that he was unfairly denied the opportunity to compete for promotion in the last year of his service. However, based on a careful examination of the evidence, the Board finds no evidentiary basis to support these claims.

2.  By law, an enlisted member is placed on the Retired List in the rank and pay grade he holds on the date of retirement.  The applicant clearly held the rank of SGT/E-5 on the date of his REFRAD.  Thus, the Board finds he was properly placed on the Retired List in that rank and pay grade.

3.  Although the applicant has provided some evidence that indicates his records were misplaced and he was dropped from the database, these factors alone do not provide a sufficient basis to conclude he would have been promoted to SSG/E-6 during the last year of his active duty service.  The evidence of record suggests that administrative errors were not the sole factors in the applicant not being recommended for promotion by his chain of command.  

4.  Regulatory guidance shows that based on his SGT date of rank, 9 February 1999, he would not have met the time in grade requirement to appear before a SSG promotion board in the primary zone of consideration prior to October 1999. In addition, if he had been recommended for promotion he could not have been promoted prior to 1 December 1999, the month prior to his retirement.  

5.  Further, although his retirement application is not on file, the Board assumes the applicant’s retirement was approved at least ninety days prior to his actual retirement date, which would have placed him in a nonpromotable status as of 
31 October 1999, based on having an approved voluntary retirement application.
6.  The applicant was also ineligible to reenlist based on his having reached the retention control point for his grade, which would also have placed him in a nonpromotable status based on not being able to complete the one year promotion service obligation for SSG.  Therefore, the Board finds, even if the applicant’s claim of administrative error is true, he still would not have been eligible to compete for promotion, subsequent to his reduction to SGT, during his last year of service.  

7.  The Board advises the applicant to note that he may apply to the Army Grade Determination Review Board (AGDRB) for consideration for advancement on the Retired List, when his active service and service on the Retired List totals 
30 years.  If under their criteria, the AGDRB determines that his service as a SSG/E-6 was satisfactory he may be advanced to that grade on the Retired List at that time.  

8.  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.

9.  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__  ___js ___  ___jtm __  DENY APPLICATION

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

INDEX

CASE ID	AR2000045007	
SUFFIX		
RECON		
DATE BOARDED	2001/01/18	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/01/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  307	129.0500	
2.		
3.		
4.		
5.		
6.