MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            14 May 2002
	DOCKET NUMBER:   AR2002066462

	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. Melvin H. Meyer		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Donald P. Hupman, Jr.		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 rank and pay grade of master sergeant/E-8 (MSG/E-8) on the Retired List. 

APPLICANT STATES:  In effect, that because of his outstanding record, evaluations, and duty performance, he feels certain that had he been allowed to remain on active duty, he would have been selected for and promoted to 
MSG/E-8 prior to reaching his retirement eligibility.  He indicates that he remained in the Reserves subsequent to his release from active duty in order to pursue his case of illegal separation.  He claims that he turned down a MSG/E-8 position in the United States Army Reserve (USAR) in order to retain his civilian dual status position.  He indicates that in October 1992, when this Board reinstated him to active duty, promotion to MSG/E-8 was not an option, however, he would like to be considered for promotion to that rank and pay grade at this time.  In support of his application, he provides a copy of his Verification of Military Experience and Training (DD Form 2586) and a copy of this Board’s 
28 October 1992 decisional document (AC92-05289).  

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

On 18 August 1982, he was promoted to the rank and pay grade of sergeant first class/E-7 (SFC/E-7), which is the highest rank and pay grade to which he was promoted and in which he served on active duty.  

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that from 18 August 1982,  the date he was promoted to SFC/E-7, through 31 May 1989, he served in successive SFC/E-7 positions in military occupational specialty (MOS) 75Z (Personnel Sergeant).  It also shows that he served in a 75Z position authorized a MSG/E-8, as the Chief, Enlisted Advisor, Readiness Group, 
St. Louis, Missouri, from 1 June 1989 through his separation date, 31 August 1990.  However, the record confirms he was never selected for or promoted to the rank and pay grade of MSG/E-8 while he was serving on active duty.  

On 6 January 1989, the applicant was honorably discharged by reason of expiration of term of service (ETS) after completing a total of 18 years, 4 months, and 24 days of active military service.  

The applicant applied to this Board requesting that his discharge be voided and that he be restored to active duty.  In effect, his request was based on the fact that after 18 years of continuous honorable service, he was denied reenlistment or an opportunity to extend his enlistment in order to retire and this decision was based on a questionable body fat percentage.  He also provided with his application to this Board, an Application for Voluntary Retirement (DA Form 2339), dated 22 December 1988, in which he requested to be retired on 
31 August 1990, in the rank and pay grade of SFC/E-7.  

On 28 October 1992, a panel of this Board concluded that the evidence of record showed that the applicant began having a problem with his weight as early as 1981, and he could have been discharged at various times since then.  However, he was still allowed to reenlist for a period that gave him over 18 years of active service.  The Board finally concluded that because the applicant had completed over 18 years of service before being discharged, he should have been allowed to extend his enlistment in order to qualify for retirement.  

As a result, the Board recommended, in effect, that all required actions be accomplished in order for the applicant’s record to be corrected to show he remained on active duty through  31 August 1990, at which time he was honorably released from active duty for the purpose of voluntary retirement, and that on 1 September 1990, he was placed on the Retired List in the rank and pay grade of SFC/E-7.  

The Data for Retired Pay (DA Form 3713), dated 6 January 1993, prepared based on the Board’s 28 October 1992 recommendation, confirms that the applicant had completed a total of 20 years and 18 days of active military service and that on 1 September 1990, he was being placed on the Retired List in the rank and pay grade of SFC/E-7.  Items 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8 (Highest Grade Attained), and Item 10 (Retired Pay) all contain the entry “E-7”, thereby confirming this was the highest grade he held and in which the applicant satisfactorily served while on active duty.  

A DD Form 214 was published based on the Board’s recommendations.  This document confirms that on 31 August 1990, the applicant was released from active duty under the provisions of chapter 12, Army Regulation 635-200, for the purpose of retirement.  It also confirms that on the date of his separation he held the rank and pay grade of SFC/E-7.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and it states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.  

Title 10 of the United States Code, section 3961, provides the legal authority for retirement grades.  It states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement.  Section 3964
(10 USC 3964) provides the authority for advancement on the Retired List and states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.  

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 had he been allowed to remain on active duty, he would have been selected for and promoted to the rank and pay grade of MSG/E-8, therefore, he should be advanced to that rank and pay grade on the Retired List at this time.  However, it finds insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant was reinstated to active duty in order to be allowed to retire by this Board primarily because he had completed over 18 years of active service at the time of his discharge at ETS in 1989, and that he had been denied the opportunity to extend in order to obtain retirement eligibility at that time.  

3.  However, the Board also concluded that the applicant had begun to have weight problems as early as 1981, and that he could have been discharged for this reason at various times since those problems began.  As a result, it is clear this Board’s 1992 decision does not support a conclusion that he would have been promoted to MSG/E-8 had he remained on active duty through his retirement date.  

3.  By law, retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, 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 (SA).  The SA has established that a member must have been selected for and promoted to the rank and pay grade to which being advanced by the proper authority while still serving on active duty; and simply serving in a position authorized the higher rank and pay grade is not sufficient to receive a satisfactory service determination under the advancement provision of the law. 

4.  Because the applicant was never promoted to, held, or served on active duty in the rank and pay grade of MSG/E-8, he is not now, nor will he in the future, be eligible for advancement to that grade under the provisions of 10 USC 3964.  

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

__MHM__  __KAN__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002066462	
SUFFIX		
RECON		
DATE BOARDED	2002/05/14	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/08/31	
DISCHARGE AUTHORITY	AR 635-200  C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.