MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 January 2002
	DOCKET NUMBER:   AR2001064713

	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 advanced to the pay grade of E-9 on the Retired List.  

APPLICANT STATES:  In effect, that he served satisfactorily in E-9 positions for many years.  He claims that an Army Echo article proclaiming who could be advanced on the Retired List turned false and was annoying to him.  He further states claims that there are errors and omissions in his military records that should result in an amendment to Special Order Number 165, dated 
19 November 1958, issued by Headquarters, VII Corps, APO 107, which appointed him to the temporary grade of sergeant first class in connection with his immediate reenlistment.  

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

On 30 September 1963, 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-6 (SFC/E-6) and had completed a total of 20 years, 11 months, and 
5 days of active military service. 

The applicant’s Department of the Army (DA) Form 24 (Service Record), that documents his period of service from 14 February 1951 to 30 September 1963, confirms in section 1 (Appointments, Promotions, or Reductions), that he was promoted to the rank and pay grade of SFC/E-6 on 11 October 1951 and that this was the highest pay grade to which he was promoted and held while serving on active duty. 

On 3 May 1963, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting to be retired, in the rank and pay grade of SFC/E-6.  This application confirmed in block 12 (highest grade ever held on active duty) that the highest grade the applicant attained while serving on active duty was SFC/E-6.  On 6 September 1963, his retirement on 1 October 1963 was approved and announced in Department of the Army (DA) Special Order Number 219.  

A Data for Retired Pay (AGPZ Form 977), dated 6 September 1963, 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-6.  It also confirmed that he would be placed on the Retired List , effective 
1 October 1963, and that his retired pay grade would also be SFC/E-6.  

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 30 September 1963, he was separated under the provisions of Title 10 of the United States Code, section 3914, by reason of length of service retirement.  It further confirms that he held the rank and pay grade of SFC/E-6 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.  

The applicant provides a copy of Special Order 165, dated 19 November 1958, issued by Headquarters, VII Corps, APO 107.  This order indicates that having been discharged from military service on 18 November 1958 and reenlisted in the permanent grade of sergeant/E-5 with a date of rank of 15 April 1950 on 19 November 1958 for a 4 year term, the applicant was appointed to the grade of SFC (temporary) with a date of rank of 11 October 1951.  However, this appointment order does not contain an authorization to promote the applicant to a pay grade above E-6. 

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 advanced on the Retired List and that his appointment order to the temporary rank of SFC should be amended to show his pay grade as E-7.  However, the Board finds insufficient evidence to support these claims. 

2.  By law and regulation, enlisted soldiers are retired in the rank they hold on the date of their REFRAD and retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty, as determined by the Secretary of the Army.  In order to satisfy this requirement a member must have been promoted to, held, and served in the higher pay grade while on active duty, performing duties in a position authorized a higher pay grade does not satisfy this satisfactory service criteria of the advancement law.  

3.  The evidence of record confirms that the applicant held the rank and pay grade of SFC/E-6 on the date of his separation and that this was the highest pay grade he attained while serving on active duty.  It also verifies that he was never actually promoted to, never held or served in a higher pay grade while he was on active duty and he has failed to provide independent evidence to the contrary. 

4.  In view of the facts of this case, the Board is compelled to conclude that the applicant was properly retired in the rank and pay grade of SFC/E-6 and that he does not meet the satisfactory service provision of the advancement law.  Thus, he is not eligible for advancement to the pay grade higher than E-6 on the Retired List. 

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

__FNE __   _ _TSK __  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2001064713	
SUFFIX		
RECON		
DATE BOARDED	2002/01/10	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1963/09/30	
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.