MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 October 2001
	DOCKET NUMBER:   AR2001059415

	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. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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/E-8).

APPLICANT STATES:  In effect, that his military occupational specialty was frozen for promotion to MSG/E-8 and that promotions were based on a soldier’s affiliation with a clique or brotherhood.  He states that his years of honorable service qualifies him for advancement on the Retired List to the rank of
MSG/E-8.  He finally states that he deserves advancement on the Retired List and the Board should grant this request. 

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

On 28 February 1975, the applicant was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 26 years, 3 months, and 16 days of active military service. 

The applicant’s Enlisted Personnel Qualification Record (DA Form 20) confirms in block 23 (appointments and reductions) shows that he was promoted to the rank and pay grade of PSG/E-7 on 28 February 1970 and that this is the highest rank and pay grade he attained while serving on active duty.  In addition, there are no documents contained in his Military Personnel Records Jacket (MPRJ) that give any suggestion that he ever held or served in a higher pay grade while on active duty.

The Report of Separation from Active Duty (DD Form 214), issued to and signed by the applicant on the date of his separation, confirms that at the time of his separation he held the rank and pay grade of platoon sergeant/E-7 (PSG/E-7) and that he was serving in military occupational specialty (MOS) 71L (Administrative Specialist).

The DD Form 214 also shows that during his active duty tenure he earned the following awards and decorations: Army Of Occupational Medal (Germany); Good Conduct Medal (7th Award); National Defense Service Medal (1st OLC); 
(2nd OLC); Combat Infantryman Badge; Vietnam Service Medal with 2 bronze service stars; and Republic of Vietnam Campaign Medal with 60 Device.

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 to, paid as, 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 noted the applicant’s contentions that his MOS was frozen for promotion to MSG/E-8 and that promotions were based on a soldier’s affiliation with a clique or brotherhood.  However, by law, in order to be advanced on the Retired List it must be determined that a member satisfactorily served on active duty in a higher grade.  In order to receive a satisfactory service determination under this statutory provision a member must have been promoted to, paid as, and satisfactorily served in a higher pay grade while on active duty.  

3.  The evidence of record  confirms that the applicant was placed on the Retired List in the rank and pay grade of PSG/E-7 and that this is the highest rank he attained and in which he satisfactorily served while on active duty.  Lacking independent evidence to the contrary, the Board finds an insufficient evidentiary basis to show he meets the satisfactory service provisions of the law required for advancement on the Retired List.  Therefore, the Board concludes that the requested relief is not warranted in this case. 

4.  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.

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

__RJW__  __KAN__  __REB __  DENY APPLICATION

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

INDEX

CASE ID	AR2001059415	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/25	
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.