MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 January 2001
	DOCKET NUMBER:   AR2000045781

	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 he be advanced to the rank and pay grade of sergeant first class/E-7 (SFC/E-7) on the Retired List. 

APPLICANT STATES:  In effect, that he would like to retire in the highest grade he held, which was SFC/E-7.  He claims that was promoted to SFC/E-7 with a date of rank of 1 November 1984 and received an order and got paid for this rank.  

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

On 31 March 1985, he was released from active duty (REFRAD), by reason of length of service retirement, in the rank and pay grade of SSG/E-6, after completing 20 years and 10 days of active military service.  

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates, in block 18 (Appointments and Reductions), that the applicant attained the rank of SSG/E-6 on 9 May 1980.  It contains no other valid entry showing that he was ever promoted to or held a higher grade while serving on active duty.  However, there is a lined out entry in the block which indicates that he was promoted to the rank of SFC/E-7 on 1 November 1984.  

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in his records.  This form verifies that he submitted his request for retirement on 25 July 1984, and that he requested a retirement date of 
31 March 1985.  This request was approved by the applicant’s commander on the same day.

Orders Number 158-50, dated 16 August 1984, codified the approval and authorized the applicant’s retirement.  It confirmed that the effective date of his retirement would be 31 March 1985 and that his retired grade of rank would be SSG/E-6.  

The record also contains a DA Form 3713 (Data for Retired Pay), dated 
26 March 1985, that verifies that the applicant held the active duty rank and pay grade of SSG/E-6 and that he would receive retired pay in that pay grade.  It also confirms that the applicant never satisfactorily held a higher rank and pay grade while serving on active duty.  

A properly constituted Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty), which was authenticated by the applicant with his signature on the date of his REFRAD is on file in the Military Personnel Records Jacket (MPRJ).  

The DD Form 214 also confirms that the applicant was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason of required service for retirement.  It also verifies that on the date of his REFRAD, 31 March 1985, the applicant was serving as a SSG/E-6, and that on the following day he was placed on the Retired List in that rank and pay grade.

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. 

Paragraph 12-8 (Service Obligations) contains guidance on service obligations that impact retirement eligibility.  Subparagraph d (Promotions) states, in pertinent part, that soldiers who have an approved retirement are in a nonpromotable status and will not be promoted unless a request for withdrawal of their retirement application has been approved. 

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.  

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 receiving retired pay in the pay grade of E-7.  However, after carefully examining both the evidence of record and the independent evidence submitted by the applicant, the Board finds this claim lacks merit.

2.  The evidence of record shows that on 25 July 1984 the applicant requested and the proper authority approved his retirement for 16 August 1984, in the rank and pay grade of SSG/E-6.  By regulation, he entered a nonpromotable status on the date his retirement was approved.  Thus, any promotion action taken subsequent to that date would be invalid, which accounts for the lined through entry in the record. 

3.  Notwithstanding the applicant’s claims that he was promoted to SFC/E-7 and was paid for that rank, the record contains no documentary evidence that would indicate that he ever received a valid promotion to or properly held the rank and pay grade of SFC/E-7 while serving on active duty.  

4.  The evidence of record shows that the applicant held the rank and pay grade of SSG/E-6 on the date of his REFRAD and that on the following day he was appropriately placed on the Retired List in that rank and pay grade.  The applicant confirmed his retirement pay grade in his authentication of his separation documents.  Thus, the Board concludes that it would not be appropriate to change the applicant’s retired pay grade to E-7.

5.  By law and regulation, advancement of soldiers on the Retired List is only authorized when a member has held and satisfactorily served in that higher pay grade while on active duty.  The record confirms that the applicant was REFRAD and placed on the Retired List in the rank and pay grade of SSG/E-6, and that he never held or served in a higher pay grade while on active duty.  Therefore, the Board finds his advancement to the rank and pay grade of SFC/E-7 on the Retired List is not warranted.  

6.  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.

7.  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	AR2000045781	
SUFFIX		
RECON		
DATE BOARDED	2001/01/18	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1985/03/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.