MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 October 2001
	DOCKET NUMBER:   AR2001058384

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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 placed on the Retired List in the pay grade of E-7.

APPLICANT STATES:  In effect, that he was on the promotion list for promotion to the pay grade of E-7, but never received orders for the promotion.

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

On 30 August 1977, while serving in the pay grade of E-6 at Fort Knox, Kentucky, the applicant signed a declination to reenlist in order to meet the service remaining requirements for a permanent change of station (PCS).  He was advised at that time, that his refusal to sign amounted to a self-imposed bar to reenlistment and that he would be ineligible to reenlist for a period of 93 days after his discharge and that he would be separated on the expiration of his term of service (15 June 1978).  The applicant acknowledged that he intended to retire in April 1978.

On 12 December 1977, he submitted a Request for Voluntary Retirement (DA Form 2339) in which he requested that he be released from active duty (REFRAD) in the pay grade of E-6 and placed on the Retired List, effective 1 June 1978.  He also indicated that he was aware of the provisions of the applicable regulation regarding the withdrawal of his request once it had been approved.  His request was approved and orders were published on 14 December 1977, authorizing his REFRAD on 31 May 1978 and placement on the Retired List in the pay grade of E-6.

On 1 February 1978, orders were published by the Department of the Army Military Personnel Center (MILPERCEN) promoting the applicant to the pay grade of E-7, effective 1 March 1978.  The orders specified that acceptance of the promotion would incur a 2-year service obligation prior to nondisability retirement and that the promotion was not valid if the individual concerned was not in a promotable status.

On 31 May 1978, the applicant was honorably REFRAD in the pay grade of E-6 and was transferred to the Retired List in the pay grade of E-6, effective 1 June 1978, under the provisions of Army Regulation 635-200, chapter 12.  He had served 20 years, 1 month and 5 days of total active service.

Documents contained in his official records that are dated after the effective date of his promotion and prior to his retirement, show that he was serving in the pay grade of E-6 and signed those documents to that effect.  There are no orders contained in his records to show when the promotion orders to E-7 were revoked. However, his last evaluation report contains a remark to the effect that the applicant declined promotion to the pay grade of E-7 in order to retire and seek a career as a game warden.
Army Regulation 635-200, chapter 12, provides the general provisions of law governing retirement.  It provides, in pertinent part, that soldiers who have an approved retirement are in a nonpromotable status.  They will not be promoted unless a request for withdrawal of their retirement application has been approved.  A soldier who receives alert orders for a PCS may decline to extend or reenlist to complete a service remaining obligation and be discharged at their ETS or if they are within 1 year of attaining retirement eligibility and do not have to extend or reenlist to attain retirement eligibility, they may submit a request for voluntary retirement.  Applications for retirement in lieu of PCS will not be withdrawn nor will the retirement date be changed.

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.  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.

2.  Notwithstanding the fact that the applicant declined PCS orders before he was retirement eligible and in effect, imposed a bar to reenlistment upon himself that would not have allowed him to extend or reenlist to accept the promotion to the pay grade of E-7 and complete the service remaining obligation of 2-years, the applicant also submitted a voluntary request for retirement that was approved before the effective date of his promotion to the pay grade of E-7 and also put him in a non-promotable status.  Accordingly, the promotion orders were not valid.

3.  While it would have required exceptional circumstances for the Department to allow him to withdraw his approved retirement and remove his bar to reenlistment, the evidence of record also bears out that the applicant was aware that he was to be promoted and elected to decline the promotion in favor of retirement and the opportunity to pursue a civilian career. 

4.  Accordingly, the Board finds that he was properly REFRAD and placed on the Retired List in the pay grade of E-6 and that he has failed to show through the evidence submitted with his application or the evidence of record that such was not the case.

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

__cla ___  ___hbo__  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058384	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/PROM	
2.  319	131.0900/ADV ON RET LIST	
3.		
4.		
5.		
6.