MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 July 2001
	DOCKET NUMBER:   AR2001054498

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Kenneth W. Lapin		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 reinstated to the rank and pay grade of master sergeant/E-8 (MSG/E-8).

APPLICANT STATES:  In effect, that he was promoted to the rank and pay grade of MSG/E-8 on 1 May 1990 and he provides the enclosed promotion order in support of his application. 

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

On 31 October 1990, he retired from the Regular Army, in the rank of sergeant first class/E-7 (SFC/E-7), after completing 20 years, 1 month, and 7 days of active military service. 

On 14 March 1990, the applicant signed a Declination of Continued Service Statement (DCSS) in order to submit a request for retirement in lieu of accepting a permanent change of station (PCS).  

On 26 March 1990, Orders Number 51-9, was issued by the Total Army Personnel Command (PERSCOM).  This order provided the authority for the applicant’s promotion to MSG/E-8, effective 1 May 1990.

The applicant’s 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 and approved by the proper authority on 27 March 1990.  In this request, the applicant requested retirement on 31 October 1990, in the rank of SFC/E-7.  The remarks section of the form indicated that he signed a DCSS and was retiring in lieu of PCS.

On 31 October 1990, the applicant was honorably released from active duty (REFRAD).  The record contains a properly constituted DD Form 214 
(Certificate of Release or Discharge From Active Duty), which was authenticated by the applicant with his signature.  This form shows that he was separated, under the provisions of Title 10, United States Code, section 3914, by reason of length of service retirement.  In addition, it verifies that he was separated and placed on the Retired List in the rank and pay grade of SFC/E-7.  

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.

Paragraph 12-8d specifies that soldiers with an approved retirement are in a 
non-promotable status.  Paragraph 12-9 contains the policy for retirement in lieu of PCS and states, in pertinent part, that soldiers who receive alert orders for PCS may request retirement in lieu of PCS.  It further indicates that retirement requests approved in lieu of PCS will not be withdrawn nor will the retirement date be changed and stipulates that soldiers in this category must retire on the approved retirement date.

Paragraph 12-10 contains the policy pertaining to the loss of Department of the Army (DA) promotion standing list status upon approval of retirement.  It states, in pertinent part, that all noncommissioned officers in the pay grades of 
E-6 through E-8 who are on a DA centralized promotion standing list will lose standing list status upon being approved for retirement .  It further indicates that the names of soldiers in this category will be administratively removed from the standing list and they will retire in the grade they hold.  

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.  Notwithstanding the promotion order provided by the applicant, the evidence or record clearly shows he was in a non-promotable status on the effective date of his promotion based on his approved retirement in lieu of PCS.  By regulation, this would have resulted in his name being administratively removed from the DA promotion standing list MSG/E-8. 

2.  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 evidence of record confirms that the applicant was placed in a non-promotable status as soon as his retirement in lieu of PCS was approved by the proper authority.  Therefore, the Board concludes he performed no satisfactory active duty service in the rank and pay grade of MSG/E-8 and is not eligible to advanced to that rank and pay grade on the Retired List. 

3.  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.

4.  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

__KAK__  __RWA__  __KWL__  DENY APPLICATION

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

INDEX

CASE ID	AR2001054498	
SUFFIX		
RECON		
DATE BOARDED	2001/07/10	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/10/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
ISSUES         1.  319	131.0900	
2.		
4.		
5.		
6.