MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 November 2000
	DOCKET NUMBER:   AR2000048333

	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. Thomas A. Pagan		Chairperson	
	Mr. Roger Able		Member	
	Mr. Thomas E. O’Shaughnessy		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 his records be corrected to reflect the pay grade of E-8.

APPLICANT STATES:  That he held the pay grade of E-8 before his discharge.  In support of his application he submits a Leave and Earnings Statement (LES) indicating his promotion to master sergeant, a copy of his DD Form 214 dated
29 February 1980, and associated documents pertaining to his promotion.

COUNSEL CONTENDS:  That the applicant was a master sergeant at the time of his retirement.  Also, to correct the applicant’s records to reflect the pay grade of E-8 would provide a sense of pride and demonstrate an outstanding accomplishment.

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

The applicant entered the Army in August 1959 and through a series of reenlistments honorably retired on 29 February 1980.

While assigned to Fort Hood, Texas the applicant was alerted for a permanent change of station (PCS) but refused to comply with those PCS instructions.  He was counseled on 2 July 1979 and 24 July 1979 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, be classified as ineligible to reenlist for a period of 93 days after discharge, and that he would be placed in a nonpromotable status.  

He submitted his application for voluntary retirement on 31 August 1979.  

He was recommended for promotion to pay grade E-8 with a sequence number 01746 in January 1979.  The LES for the period 1-29 February 1980 submitted with his application indicates the applicant was promoted to master sergeant.

He retired in the pay grade E-7 on 29 February 1980.

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 3, paragraph 3-3, 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), be classified as ineligible to reenlist for a period of 93 days after discharge, and will be placed in a nonpromotable status.

Army Regulation 600-200, chapter 7, paragraph 7(o) states, in pertinent part, individuals with four 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.  The Board notes that the applicant was counseled twice on the effects of his decision to decline PCS instructions and declining PCS instructions would place him in a nonpromotable status.

2.  The applicant’s decisions to decline PCS instructions placed him in a nonpromotable status in accordance with Army Regulations.

3.  The applicant’s promotion was invalid because he was in a nonpromotable status.

4.  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.

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

__TAP__  ___RA___  ___TEO__  DENY APPLICATION

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

INDEX

CASE ID	AR2000048333	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001121	
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.	129.04	
2.		
3.		
4.		
5.		
6.