MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           2 November 2000
	DOCKET NUMBER:  AR2000045524

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. William D. Barr		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:  That he be advanced on the retired list to pay grade E-8.

APPLICANT STATES:  That he was qualified and placed on a promotion list to master sergeant.  He states that a change in Army Regulations occurred after he was on the promotion list that caused soldiers who declined an overseas assignment to be placed in a nonpromotable status.  In support of his application he provides a DD Form 214 dated 29 February 1976 and a copy of his retirement orders.

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

The applicant enlisted in the Army on 20 July 1955 for 3 years and through reenlistments honorably retired on 29 February 1976.  

While assigned to Fort Jackson, South Carolina the applicant was alerted for a permanent change of station (PCS) for an overseas assignment and refused to comply with the PCS instructions.  He was counseled on 22 January 1974 for refusing to comply with the PCS instructions.  He was told that upon completion of his current enlisted term of service, he would be released from active Federal service and be classified as ineligible to reenlist for a period of 93 days after discharge.

He was recommended for promotion to pay grade E-8 with a sequence number 2849 in November 1974.  

On 9 October 1975 the applicant submitted a request for removal of his counseling statement.  In his appeal the applicant stated that he was unaware of his nonpromotable status and if selected to pay grade E-8, the two-year obligation would then nullify the counseling statement.  He stated his decision to decline PCS instructions at the time was because he had not been considered for promotion and felt he should remain in the United States to prepare for retirement.  Also, to deny his promotion would have an adverse affect on his personal and military life.  

The Total Army Personnel Command (PERSCOM) denied his request on 
10 November 1975.  PERSCOM stated that to remove a counseling statement required exceptional circumstances.  Also, the applicant’s request did not reflect that his refusal to reenlist or to extend his enlistment was based upon problems of a hardship nature, but rather upon his decision to retire.  On 23 January 1976 PERSCOM denied his request for reconsideration for removal of his counseling statement.

Department of the Army, Special Orders 195, dated 6 October 1975 promoted the applicant to master sergeant with an effective date of 1 November 1975.  

His promotion was revoked by Department of the Army, Special Orders 209, dated 28 October 1975.

He submitted an application to this Board on 4 December 1975 requesting that his counseling statement be removed and that he be promoted to master sergeant.  The Board denied the applicant’s request on 17 April 1976.

He submitted his application for voluntary retirement on 10 February 1976.  He retired in the pay grade E-7 on 29 February 1976.

Army Regulation 601-280 prescribes the eligibility criteria and options currently available in the Army Retention Program.  For those soldiers serving in the Active Army, it outlines procedures for immediate reenlistment or extension of enlistment.  Chapter 4, paragraph 4, states, in effect, those individuals who refuse to take action to meet service requirements will be counseled on the effects of their refusal.  A statement to the effect that the individual has been counseled and refuses to comply with published instructions will be prepared.  This statement will include the date, time, and place of counseling, and the name of the counseling officer.  Also, the soldier will be released from active service upon expiration term of service (ETS) and classified as ineligible to reenlist for a period of 93 days after discharge.

Army Regulation 600-200 prescribes the policy and procedures for career management of Army personnel.  Chapter 7, paragraph 7-6, in effect at the time, did not place a soldier who declined PCS instructions in a nonpromotable status.

Effective 1 July 1975, under the provisions of paragraph 7-6, Army Regulation 600-200 (Change 53), individuals with six or more years of active Federal service who were selected for overseas assignment and who were removed from assignment instructions for declining reenlistment or extension would be placed in a nonpromotable status.

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’s counseling for declining PCS instructions was accomplished in accordance with applicable regulations.

2.  The Board notes that the regulation in effect at the time did not place the applicant in a nonpromotable status because of his declination of PCS instructions.  However, effective 1 July 1975, under the provisions of paragraph 7-6, Army Regulation 600-200 (Change 53), individuals with six or more years of active Federal service who were selected for overseas assignment and who were removed from assignment instructions for declining reenlistment or extension would be placed in a nonpromotable status.

3.  The change in regulatory guidance effective 1 July 1975 placed the applicant in a nonpromotable status.  The applicant’s promotion occurred after the effective date of the change in regulatory guidance prescribing nonpromotable status.  The change in regulatory guidance did not provide for the retroactive eligibility criteria governing nonpromotable status.  

4.  The applicant retired in the pay grade of E-7, the highest grade he held satisfactorily while on active duty; therefore, he is not eligible for advancement on the retired list.

5.  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

__FNE___  __TSK__  __WDB__  DENY APPLICATION

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

INDEX

CASE ID	AR2000045524	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001102	
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.	131.09	
2.		
3.		
4.		
5.		
6.