MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 March 2002
	DOCKET NUMBER:   AR2002066460

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Roger W. Able		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 he be advanced to that rank and pay grade on the Retired List.  

APPLICANT STATES:  In effect, that he was not selected for promotion to MSG/E-8 after having served in a position authorized that rank and pay grade for two years and earning a Meritorious Service Medal (MSM) for his service in that position.  He claims that he believes that he should be advanced to MSG/E-8 on the Retired List after serving in the rank and pay grade of sergeant first class/E-7 for 11 years.  He indicates that he was forced to retire during the downsizing of the Army in the early 1990’s when the retention control point (RCP) for an SFC/E-7 was changed from 24 to 22 years.  

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

On 30 June 1993, he was released from active duty (REFRAD) for the purpose of retirement.  On that date he held the rank and pay grade of SFC/E-7 and had completed a total of 22 years and 22 days of active military service. 

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in Item 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 11 July 1982, and that this is the highest rank he held while serving on active duty.  

On 15 December 1992, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting to REFRAD for the purpose of retirement on 30 June 1993, in the rank and pay grade of SFC/E-7.  Item 6 (Highest Grade Served on Active Duty) confirms that the highest rank and pay grade he attained while serving on active duty was also SFC/E-7.  

On 6 January 1993, the applicant’s REFRAD and placement on the Retired List the following day was directed in Orders Number 3-105, issued by Headquarters, US Army Air Defense Artillery Center, Fort Bliss, Texas.  This order also confirms that the effective date of his REFRAD was 30 June 1993, and that his authorized retired rank and pay grade were SFC/E-7.  

A Data for Retired Pay (DA Form 3713), dated 25 June 1993, that was prepared on the applicant during his retirement processing, contained the entry SFC/E-7 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained), and Item 10 (Retired Pay).  This document also confirms that he was  placed on the Retired List on 1 July 1993, and that he had completed a total of 22 years and 22 days of active military service. 

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 June 1993, he was separated under the provisions of chapter 12, Army Regulation 635-200, for the purpose of 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.  

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 have been promoted to MSG/E-8 and advanced to that rank and pay grade on the Retired List based on his having served in a position authorized that rank and pay grade for two years.  However, it finds insufficient evidence to support this claim.  

2.  By law and regulation, enlisted soldiers are retired in the rank and pay grade 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 rank and 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-7 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, 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 concludes that the applicant was properly retired in the rank and pay grade of SFC/E-7 and that he does not meet the satisfactory service provision of the advancement law.  Thus, he is not eligible for advancement to a pay grade higher than E-7 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

__JHL__  __WTM__  __RWA___  DENY APPLICATION

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

INDEX

CASE ID	AR2002066460	
SUFFIX		
RECON		
DATE BOARDED	2002/03/14	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/06/30	
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.