MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 January 2001
	DOCKET NUMBER:   AR2000046010

	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 first sergeant E-8 (1SG/E-8) to sergeant major/E-9 (SGM/E-9).  

APPLICANT STATES:  In effect, that he should have been selected for promotion and would have been had it not been for erroneous documents in his records.  He claims that a record of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), remained on file in the performance portion of his Official Military Personnel File (OMPF) when it should have been removed.  In addition, he claims that a Noncommissioned Officer Evaluation Report (NCOER) on file in his OMPF was unjustified and was a revengeful act on the part of a captain.  He further claims that a comparison of the date he departed from Egypt and the date recorded on the NCOER will verify the report was unjust. 

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

On 31 January 1990, the applicant was released from active duty (REFRAD), by reason of length of service retirement, and placed on the Retired List as a 
1SG/E-8 after completing 30 years and 12 days of active military service. 

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) shows that he held the rank of 1SG/E-8, which he attained on 
6 August 1981, and that this is the highest rank he attained and held while serving on active duty.  

The Military Personnel Records Jacket (MPRJ) contains a copy of the Department of the Army (DA) Form 2339 (Application for Voluntary Retirement), submitted by the applicant on 7 July 1989.  In this application, he requested retirement, in the rank and pay grade of 1SG/E-8, effective 1 January 1990.  The application was approved by the appropriate authority on 4 August 1989.

A DA Form 4240 (Data for Payment of Retired Pay-Army Personnel) prepared on the applicant during his retirement processing confirms that he was entitled to receive retired pay as a 1SG/E-8, which was the highest rank he attained and held while serving on active duty. 

A review of the last performance portion of the applicant’s OMPF reveals no record of NJP.  The restricted portion of the OMPF does include a record of proceedings under Article 15, dated 18 July 1969, that was transferred from the performance portion of the OMPF as a result of action taken by the DA Suitability Evaluation Board Evaluation Board (DASEB) on 31 July 1984.  

The performance portion of the applicant’s OMPF also contains the change of rater NCOER referred to by the applicant in his contentions and which he claims was invalid based on the date he departed Egypt.  However, the record shows that the NCOER ended in November 1988, which coincides with the applicant’s 21 November 1988 departure date from Egypt that is recorded in block 35 (Record of Assignments) of his DA Form 2-1.  In addition, there is no evidence on file that the applicant ever contested or appealed this NCOER at the time it was rendered. 

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 states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade they held and satisfactorily served in while on active duty.

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 a record of NJP improperly remained in his record and that an erroneous NCOER resulted in his not being selected for promotion prior to his retirement.  However, these claims are neither supported by the evidence of record nor by the independent evidence submitted by the applicant.  

2.  The evidence of record shows that the NJP accepted by the applicant was properly filed and moved to the restricted portion of his OMPF in 1984, as a result of his appeal to the DASEB.

3.  Further, the record indicates no error in the timeframe of the NCOER questioned by the applicant nor any evidence that the applicant ever contested or appealed this report at the time it was rendered.  Therefore, the Board finds that these factors provide no basis for promoting the applicant to SGM/E-9.

4.  By law, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade.  The applicant’s record contains no evidence that suggests he was ever promoted to, served in, or held the rank and pay grade of SGM/E-9 while on active duty.  Therefore, the Board finds that he does not meet this satisfactory service test and his advancement to the rank and pay grade of SGM/E-9 on the Retired List is not warranted. 

5.  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.

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

___mm__  __js_____  __jtm ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046010	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/01/18	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/adv on Retired List	
2.		
3.		
4.		
5.		
6.