PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 August 2001
	DOCKET NUMBER:   AR2001055123

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Walter T. Morrison		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Joe R. Schroeder		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his military records be corrected to show that he retired in the rank and pay grade of master sergeant/E-8 (MSG/E-8).

3.  The applicant states, in effect, that he served in the Army for 24 years without ever having received any disciplinary action and this should have allowed him to be granted a waiver to retire in the rank and pay grade of MSG/E-8, which he justly earned and deserved.  He further states that exceptions to policy are granted for individuals to serve in the Army and feels the same action should be applied for those individuals retiring after faithfully serving their country.  In support of his application, he submits a Memorandum, dated 6 July 2000, from the Chief of Personnel Division, Office of the Chief, Army Reserve (OCAR); two Request for Personnel Action forms (DA Form 4187), dated 22 February 2000 and 6 July 2000; his MSG/E-8 promotion order; and the order revoking this promotion.

4.  The applicant’s military records show that on 1 May 1999, he was promoted to the rank and pay grade of MSG/E-8.  On 30 September 2000, he was honorably released from active duty (REFRAD), for the purpose of retirement, after having completed a total of 22 years, 1 month, and 22 days of active military service. 

5.  On 1 May 1999, the applicant was promoted to the rank and pay grade of MSG/E-8.  On 22 February 2000, while serving on active duty in an Active Guard/Reserve (AGR) status, the applicant submitted a request for a waiver of his 2 year promotion active duty service obligation (ADSO) in order to retire in the rank and pay grade of MSG/E-8, effective 1 October 2000.  On 25 February 2000, he added a request for voluntary retirement under the provisions of chapter 12, Army Regulation 635-200.

6.  On 6 July 2000, the Chief of Personnel Division, Office of the Chief, Army Reserve (OCAR) denied the applicant’s request for a waiver of the 2-year promotion ADSO under the provisions of Army Regulation 140-158 and indicated that this regulation prohibited AGR soldiers from applying for retirement during their 2 year promotion ADSO period unless they qualified for retirement based on completing 30 or more years of service or qualified for retirement in the higher pay grade based on prior service.  However, the applicant was advised by OCAR officials that he could apply for retirement under the provisions of Army Regulation 635-200 but he would be retired in the lower rank and pay grade of sergeant first class/E-7 (SFC/E-7).  

7.  On 6 July 2000, based on OCAR advice, the applicant requested retirement in the rank and pay grade of SFC/E-7.  On 25 July 2000, Orders Number 2071, issued by Total Army Personnel Command, St. Louis, Missouri (PERSCOM, St. Louis), directed the revocation of the applicant’s promotion to MSG/E-8 and on 30 September 2000, he was REFRAD as an SFC/E-7 and on the following day placed on the Retired List in that rank and pay grade. 
8.  During the processing of this case, a staff member of the Board contacted an official of the OCAR, Personnel Division, to obtain an interpretation of the applicable regulations and to determine if they found the actions taken in this case were properly accomplished in accordance with those regulatory provisions. The opinion received indicated that the Army, in effect, had two options in this case.  The first was to deny consideration of the applicant’s request for retirement and waiver and return it without action under the provisions of paragraph 4-16 of Army Regulation 140-158, which prohibits AGR members from applying for retirement while they are serving on a promotion ADSO.  The second was to process his waiver and retirement request under the provisions of chapter 12, Army Regulation 635-200, which required that the ADSO waiver be denied and retirement disapproved or that the waiver be approved and he be allowed to retire as a MSG/E-8.  The regulation expressly prohibits the administrative reduction of a soldier based on an ADSO, in order to allow a retirement in a lower grade, and therefore, in this case, a waiver of the ADSO was implicit in the retirement approval and the applicant should have been allowed to retire in the rank and pay grade of MSG/E-8.  

9.  Army Regulation 140-158, governs the assignment and utilization of USAR soldiers.  Paragraph 4-16 contains service remaining obligations for AGR members promoted to senior NCO ranks.  It states, in pertinent part, that members promoted to MSG incur a 2-year obligation to remain on AGR status and that during that period they will not apply for voluntary retirement.

10.  Army Regulation 635-200, chapter 12 contains guidance on enlisted retirements authorized by Title 10 of the United States Code, section 3914.  Paragraph 12-8 specifically addresses service obligations and how they impact the ability to retire under these regulatory provisions.  Sub-paragraph (d) states, in pertinent part, that a soldier may not be administratively reduced to complete a promotion service obligation.  

CONCLUSIONS:

1.  The evidence of record shows that he was promoted to MSG/E-8 on 
1 May 1999, and as a result incurred a 2 year promotion service obligation.  In July 2000, over a year later, he requested retirement and a waiver of his service obligation in order to retire in September 2000 as a MSG/E-8.  

2.  The Board agrees with the OCAR opinion that the Army had only two options in this case.  First, to deny consideration of the applicant’s retirement request under the provisions of Army Regulation 140-158 and second to process the request under the provisions of chapter 12, Army Regulation 635-200, which required that if the retirement was approved an ADSO waiver be granted and mandated that he be allowed to retire in the rank and pay grade of MSG/E-8.  

3.  By regulation, administratively reducing a soldier based on a promotion service obligation for the purpose of allowing them to retire in a lower grade is prohibited.  Thus, the Board concludes the revocation of the applicant’s promotion to MSG/E-8, in order to allow him to retire in the lower rank and pay grade of SFC/E-7, was improper.  As a result, the Board also finds that it would be appropriate to void the promotion revocation order, thereby, reinstating him to MSG/E-8 and to correct his record to show he was REFRAD and placed on the Retired List in the rank and pay grade of MSG/E-8. 

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding PERSCOM St. Louis Orders Number 2071, dated 5 July 2000, which revoked the promotion to MSG/E-8 of the individual concerned; by showing he held the rank and pay grade of MSG/E-8 on the date of his REFRAD and placement on the Retired List; by providing him all back pay and allowances due as a result of these actions; and by providing him a corrected separation document that reflects this change. 

BOARD VOTE:  

__WTM__  __REB__  __JRS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Walter T. Morrison __
		        CHAIRPERSON

INDEX

CASE ID	AR2001055123	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/14	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.