MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 July 2001
	DOCKET NUMBER:   AR2001056907

	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. John N. Slone		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. William D. Powers		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 that he be advanced on the Retired List to the rank and pay grade of sergeant first class/E-7 (SFC/E-7).  He also requests that his military records be corrected to show all awards and decorations to which he is entitled.

APPLICANT STATES:  In effect, that he should be advanced on the Retired List due to his honorable service to his country.  He states that during his military career he served in positions calling for a higher rank but he was never actually promoted.  He states that his superiors constantly used his expertise during evaluations and inspections.  He further states that advancement on the Retired List would compensate for his non-service connected lung ailment.  In support of his application, he provides the four enclosed separation documents, four letters of commendation, four honorable discharge certificates, and a certificate of retirement.  

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

On 31 October 1970, he was honorably retired in the rank and pay grade of staff sergeant/E-6 (SSG/E-6).  His military occupational specialty (MOS) was 94B (Medical Specialist) and he was promoted to SSG/E-6 on 28 April 1967.  His awards include the Good Conduct Medal (3rd Award), the National Defense Service Medal (1st OLC), and the Vietnam Service Medal.

A Data For Retired Pay (DA Form 3713) on file shows that the highest grade he attained while serving on active duty was SSG/E-6.  It also confirms that he served a total of 20 years and 3 days of active military service.

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.  The term “highest grade in which he served on active duty satisfactorily” does not apply to a member who simply served in a position calling for a higher rank and pay grade.  In order to meet the satisfactory service provisions of the law a member must have actually been promoted, paid, and served in the higher grade 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 evidence of record shows that the applicant was placed on the Retired List in the rank and pay grade of SSG/E-6, which is the highest rank to which he was actually promoted, paid as, and served in while on active duty.  Therefore, 
in accordance with the applicable statutory provisions he is not entitled to advancement to a higher grade on the Retired List.

2.  His contention that he should be advanced on the Retired List because he served in positions of higher rank during his military career is without merit. 
Service in a higher position does not provide a legal basis for advancement on the Retired List.

3.  The applicant’s military records were reviewed and appear to reflect all awards and decorations to which he is entitled.

4.  The Board wishes to congratulate and thank the applicant for his 
20 years, 3 months, and 24 days of outstanding service to his country.

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

__JNS__  __ MVT __  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2001056907	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/07/24	
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.