MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 August 2001
	DOCKET NUMBER:   AR2001058087

	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 H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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 advanced on the Retired List to the rank and pay grade of master sergeant/E-8 (MSG/E8).

APPLICANT STATES: In effect, that he served in a MSG/E-8 position for more than a year prior to his promotion to that rank and pay grade, which was effective 1 January 1981.  He states his promotion to MSG/E-8 was delayed due to the Gulf War.  He further states that the decision not to promote him was made by his battalion commander due to his approved retirement.  In support of his application, he submits a copy of promotion Orders Number 188-10, issued by the Total Army Personnel Command (PERSCOM), promoting him to MSG/E-8 and copies of pages 1 and 2 of the recommended promotion list to MSG/E-8, dated 31 July 1989.

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

The applicant retired in the pay grade of E-7 on 31 May 1991.  He served in military occupational specialty (MOS) 00R40 (Recruiter) and he earned the following awards during his active duty tenure: Good Conduct Medal (5th Award), National Defense Service Medal with a bronze star denoting a second award, Army Commendation Medal (3rd OLC), and the Army Achievement Medal.

On 20 August 1990, while assigned to the US Army Recruiting Battalion, New Orleans, Louisiana, the applicant submitted his application for voluntary retirement.  On 17 October 1990, Headquarters, Fifth US Army and Fort Sam Houston, Texas, approved his application for voluntary retirement and issued Orders Number 210-62, which directed the applicant’s retirement, effective 
31 May 1991 and his placement on the Retired List, in the rank and pay grade of sergeant first class/E-7 (SFC/E-7), on the following day.

Promotion Orders Number 188-10, dated 27 November 1990, issued by PERSCOM, promoted him to MSG/E-8, effective 1 January 1991.

Army Regulation 600-200 prescribes the policy and procedures for career management of Army personnel.  Chapter 7, paragraph 7, in effect at the time, provided that individuals with an approved voluntary retirement application will be considered in a nonpromotable status.

Army Regulation 635-200, chapter 12, prescribes the policy and procedures for enlistment retirements for length of service.  Paragraph 12-10 contains the policy in regard to the loss of Headquarters, Department of the Army (HQDA) centralized promotion list standing upon retirement approval.  It states, in pertinent part, that all noncommissioned officers (NCOs) in the rank of staff sergeant through master sergeant/first sergeant who are currently on a HQDA centralized promotion list will lose promotion-list standing upon approval of a retirement.  Their names will be administratively removed from a promotion list, and they will retire in the grade currently held.

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 Board notes the applicant’s contention that his promotion was delayed due to the Gulf War but finds this claim lacks merit.  The evidence of record confirms that the applicant voluntarily submitted his application for retirement and this request was approved by the proper authority on 17 October 1990, which was over two months prior to the effective date of his promotion.  

2.  By regulation, members are automatically placed in a non-promotable status upon approval of their retirement and those on HQDA promotion lists are automatically removed and retired in the grade they currently hold. 

3.  As a result of the approval of his application for retirement in October 1990, the applicant’s promotion to MSG/E-8 was invalid due his being in a 
non-promotable status and his name should have been administratively removed from the HQDA promotion standing list upon that approval.  Therefore, the applicant’s placement on the Retired List in the rank and pay grade of 
SFC/E-7 was appropriate and accomplished in accordance with the applicable regulations. 

4.  By law and regulation, enlisted members are eligible to be advanced on the Retired List to the highest rank in which they satisfactory served while on active duty.  In order to meet the satisfactory service provision of the law a member must have been promoted to, paid, and served in the higher grade while on active duty.  Given the applicant’s promotion was invalid due to his 
non-promotable status based on his approved retirement, the Board finds he does not meet the criteria necessary for advancement on the Retired List. 

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

___JHK__  __TL____  __PM___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058087	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/23	
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 	131.0900	
2.		
3.		
4.		
5.		
6.