MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 November 2001
	DOCKET NUMBER:   AR2001059788

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 promoted to master sergeant/E-8 (MSG/E-8) and that his retired grade of sergeant first class/E-7 (SFC/E-7) also be changed to MSG/E-8 accordingly.

APPLICANT STATES:  In effect, that he was recommended for promotion to MSG/E-8 three times; however, was denied promotion each time for the reasons indicated:  reassignment to Republic of Vietnam; on combat patrol when the promotion board met; and enroute to a new assignment when the promotion board met.  In support of his application, he provides copies of the following documents:  separation document (DD Form 214), three promotion recommendations prepared in 1967, 1968, and 1971; letter of appreciation from a major general; Bronze Star Medal (BSM) certificate and citation; Army Commendation Medal (ARCOM) 1st Oak Leaf Cluster citation; Combat Infantryman Badge (CIB) order; letter from a lieutenant general (LTG) replying to his award and promotion inquiries; and three enlisted efficiency reports (EERs) he received in 1970 and 1971. 

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

On 31 July 1972, he was released from active duty (REFRAD), for the purpose of retirement.  At the time of his separation, he had completed a total of 28 years,
8 months, and 19 days of active military service.  

The applicant’s Enlisted Qualification Record (DA Form 20), which was prepared and audited by him on 12 June 1972, confirms in block 33 (appointments and reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 
23 November 1964.  The DA Form 20 also shows that SFC/E-7 was the highest rank to which he was actually promoted, held, and satisfactorily served in during his tenure on active duty.  There is no indication in block 33, or anywhere else in the DA Form 20, that he was ever promoted to the rank and pay grade of MSG/E-8 while he was serving on active duty. 

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of a Data for Retired Pay (DA Form 3713), dated 6 July 1972, that was prepared on him during his retirement processing.  This document contains the entry SFC/E-7 in block 2 (Active Duty Grade), block 3 (Retired Grade), block 8 (Highest Grade Attained), and block 10 (Retired Pay Grade).  The rank and pay grade related entries in the DA Form 3713 verify that SFC/E-7 was the highest rank attained and held by the applicant during his active duty tenure; and that it was the rank and pay grade he held on the date of his REFRAD and in which he was placed on the Retired List. 

The DD Form 214, issued to and authenticated by the applicant with his signature on the date of his separation, 31 July 1972, verifies in blocks 5a & b (Rank & Pay Grade) that he held the rank and pay grade of SFC/E-7 on the date of his REFRAD.  It also contains the entry “Retires in Grade of Sergeant First Class” in block 30 (Remarks).  These entries in his separation document confirm that SFC/E-7 was his assigned retired grade.  There is no indication in the record that the applicant raised the issue of his rank and pay grade during his retirement processing or at the time of his separation.

The applicant provides three promotion recommendations which recommend he be promoted to MSG/E-8.  The first, dated 5 September 1967, was submitted by a lieutenant colonel (LTC), Assistant Chief of Staff, (ACofS), G1, Fort Carson, Colorado; the second, dated, 12 June 1968, was prepared by an Army of the RVN (ARVN) major, battalion commander, Danhim Special Zone, RVN; and the third, dated 10 November 1971, was provided by a colonel, Province Senior Advisor, RVN.  However, the record contains no evidence that these recommendations resulted in the applicant being selected for or promoted to MSG/E-8 by the proper authority.  

The letter provided by the applicant from the LTG, commander of I Field Force, RVN, dated 27 December 1969, confirms that the applicant was recommended for promotion to MSG/E-8 in late Spring of 1968.  However, it also verifies that this promotion recommendation was returned without action by the promotion authority, Military Advisor Command, RVN, because no vacancies existed that would have allowed the applicant’s promotion.  

The applicant also provides copies of EERs and other documents attesting to his excellent performance of duties.  However, none of the supporting documents provided give any indication that the applicant was selected for or promoted to MSG/E-8 by the proper authority during his active duty tenure. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the Regular or Reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961). 

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the retired list totals 30 years.  The legal authority for this action is provided by Title 10 of the Untied States Code, section 3964
(10 USC 3964). 

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 he should be promoted to MSG/E-8 and advanced to that rank and pay grade on the Retired List.  However, it finds insufficient evidence to support granting the requested relief. 

2.  By law and regulation, retirement will be in the Regular or Reserve grade the soldier holds on the date of retirement and advancement on the Retired List is only authorized when a member has held and satisfactorily served on active duty in a higher grade.  Simply performing duty in a position authorized a higher pay grade does not satisfy the satisfactory service provision of the law. 

3.  Notwithstanding the applicant’s excellent record of service and the fact that he was recommended for promotion to MSG/E-8 on at least three occasions, the evidence of record clearly confirms that the highest rank he attained and held while serving on active duty was SFC/E-7.  In fact, the applicant’s own evidence, the LTG letter, confirms that the promotion recommendation submitted on him in 1968 was returned without action by the promotion authority.  Lacking evidence to the contrary, the Board must presume that the other two promotion recommendations provided by the applicant met with similar fates.

4.  The Board also took special note of the fact that the applicant verified the information contained in his Enlisted Qualification Record on 12 June 1972, which included his record of promotions confirming that the highest rank he attained on active duty was SFC/E-7.  In addition, he verified that the information contained in his DD Form 214 that confirmed that he held the rank and pay grade of SFC/E-7 on the date of his REFRAD and that he would be retired in that rank and pay grade. 

5.  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.

6.  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

__AAO__   _ _LE __  __JTM___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059788	
SUFFIX		
RECON		
DATE BOARDED	2001/11/27	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1972/07/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.