MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 January 2002 
	DOCKET NUMBER:   AR2001062145

	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. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		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 the rank and pay grade of warrant officer one/W-1(WO1/W-1) and that he be advanced to that rank and pay grade on the Retired List. 

APPLICANT STATES:  In effect, that while serving in the Republic of Vietnam (RVN), in extremely sensitive and complex military intelligence operations, he was frocked to the rank of WO1/W-1 and served in that grade for approximately one year.  In support of his application, he provided a local travel document that refers to him as a WO1-W-1 and documents related to his request for appointment as a warrant officer. 

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

On 31 August 1975, he was released from active duty (REFRAD) for the purpose of retirement.  On that date he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7) and had completed a total of 20 years and 12 days of active military service. 

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in block 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 13 October 1969, and this was the highest rank he held while serving on active duty.  The applicant reviewed this record on 18 April 1974 and he verified that the information contained therein was correct on that date. 

On 3 March 1975, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting to be retired on 1 September 1975, in the rank and pay grade of SFC/E-7, and his application was approved by the proper authority on that same date. 

A Data for Retired Pay (DA Form 3713), dated 7 March 1975, that was prepared on the applicant during his retirement processing, verified that his active duty grade and the highest grade he attained while on active duty was SFC/E-7.  It also confirmed that he would be placed on the Retired List , effective 
1 September 1975, and that his retired pay grade would also be SFC/E-7.  

The record also contains a properly constituted separation document 
(DD Form 214), which was authenticated by the applicant with his signature on the date of his REFRAD.  This document shows that on 31 August 1975, he was separated under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement.  It further confirms that he held the rank and pay grade of SFC/E-7 on the date of his separation and that on the following day he was placed on the Retired List in that rank and pay grade.  

In support of his application, the applicant submits a travel document issued on a local United States Army Vietnam (USARV) form, dated 1 May 1972, that indicates that his grade was WO1.  However, there are no other official documents on file in his Military Personnel Records Jacket (MPRJ) that show he was ever promoted or appointed to this rank and pay grade.  He also provides documents issued by Department of the Army (DA) that confirm his request for appointment as a warrant officer was denied on two separate occasions, first in 1969 and again in 1972.  

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 the rank and pay grade of WO1/W-1 and advanced to that rank and pay grade on the Retired List because he served in that grade while on active duty.  However, the Board finds this factor alone does not provide a sufficient evidentiary basis to warrant the requested relief. 

2.  By law and regulation, enlisted members retire in the grade they hold on the date of their REFRAD for the purpose of retirement.  Further, they are only entitled to advancement on the Retired List when the Secretary of the Army has determined that they satisfactorily served in the higher rank and pay grade while on active duty.  The evidence of record confirms that the applicant was never actually promoted to or never held the rank and pay grade of WO1/W-1 while he was on active duty.

3.  In order to satisfy the satisfactory service provision of the advancement law, a member must have been promoted to, paid in, satisfactorily held, and served in the higher pay grade while on active duty.  Serving in a position authorized a higher rank and pay grade alone does not satisfy this requirement of the law and is not a basis for advancement.  Thus, the Board concludes there is insufficient evidence to support either promoting the applicant to WO1/W-1 or for advancing him to that rank and pay grade on the Retired List. 

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

__FNE __   _ _TSK __  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2001062145	
SUFFIX		
RECON		
DATE BOARDED	2002/01/10	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1975/08/31	
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.