MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            14 February 2002                  
	DOCKET NUMBER:    AR2002067164

	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. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 his retired rank and pay grade be changed from sergeant first class/E-7 (SFC/E-7) to master sergeant/E-8 
(MSG/E-8).  

APPLICANT STATES:  In effect, he is submitting this application in order to receive formal orders to correct his retired rank in all personnel and finance records.  In support of his application, he provides a copy of a MSG/E-8 promotion order and a Department of Defense (DD) Form 215 (Correction to 
DD Form 214, Certificate of Release or Discharge from Active Duty), dated 
30 November 2000. 

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

On 31 October 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 he had completed a total of 20 years and 28 days of active military service. 

On 5 May 1993, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting that he be retired on 31 October 1993, in the rank and pay grade of SFC/E-7.  A Data for Retired Pay (DA Form 3713) prepared on him during his retirement processing contains the entry SFC/E-7 in item 2 (Active Duty Grade), item 3 (Retired Grade), and item 8 (Highest Grade Held).  It also verified that the applicant would be placed on the Retied List, effective 
1 November 1993, and that he would receive retired pay as a SFC/E-7.  

On 7 May 1993, Orders Number 000127-007, published by Headquarters, 
4th Infantry Division (Mechanized), Fort Carson, Colorado, directed the applicant’s REFRAD on 31 October 1993, and his placement on the Retired List the following day in the rank and pay grade of SFC/E-7.  

On 26 May 1993, Orders Number 86-11, was issued by Headquarters, Department of the Army (DA), which provided the authority for the applicant’s promotion to MSG/E-8, effective 1 July 1993.  These orders contained specific instructions that indicated that the promotion was not valid and would be revoked if the solider concerned was not in a promotable status on the effective date of the promotion.  It further specified that soldiers who were promoted automatically incurred a 2 year service obligation prior to voluntary non-disability retirement.

The applicant’s promotion to MSG/E-8 was never entered in his Personnel Qualification Record (DA Form 2-1), which would indicate he was never formally and officially promoted to that rank and pay grade. The last promotion recorded in his record is SFC/E-7, with a date of rank of 23 October 1984.  In addition, his Military Personnel Records Jacket (MPRJ) contains no orders or documents that show he ever attempted to withdraw his approved retirement in order to accept promotion to MSG/E-8 and complete the 2 year service obligation it required. 
On 31 October 1993, the applicant was REFRAD under the provisions of chapter 12, Army Regulation 635-200, for the purpose of voluntary retirement.  The separation document (DD Form 214) issued to the applicant on the date of his separation from active duty, which he authenticated with his signature, confirms that he held the rank and pay grade of SFC/E-7 on the date of his REFRAD and that he was placed on the Retired List the following day in that rank and pay grade.

On 30 November 2000, at the applicant’s request, a DD Form 215 was erroneously issued to him that changed the following items of his DD Form 214 as indicated:  item 4a (Grade, Rate, or Rank) to read MSG; item 4b (Pay Grade) to read E-8; and item 12h (Effective date of pay grade) to read 1 July 1993.  A member of the Board staff contacted an official of the office that issued the 
DD Form 215, and it was determined that it was issued in error.  The official confirmed that the DD Form 215 would be voided, effective 6 February 2002, the date the administrative error was discovered. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 contains the policy, procedure pertaining to voluntary retirement and paragraph 12-8 outlines specific eligibility requirements. Paragraph 12-8d states, in pertinent part, that soldiers who have an approved retirement are in a non-promotable status and they will not be promoted unless a request for a withdrawal of their retirement application is approved.  Paragraph 12-8d(1) states, in pertinent part, that individuals who are promoted to pay grade of E-7, E-8, or E-9, incur a two year service obligation and this obligation must be completed prior to voluntary retirement.  

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 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 he should be issued orders and that his personnel and finance records should be corrected to show his rank as MSG/E-8 based on the DD Form 215 issued to him on 30 November 2000.  

2.  However, given it has been established that the DD Form 215 issued to him was the result of an administrative error and that it will be voided by the issuing office, the Board finds the applicant’s claim lacks merit.  By regulation, he was in a non-promotable status once his retirement was approved on 7 May 1993.  As a result, any subsequent promotion to MSG/E-8 would have been invalid unless a request to withdraw his retirement had been approved.  

3.  There is no evidence to show that the applicant ever attempted to withdraw his approved retirement in order to accept the promotion and complete the 
2 years service obligation he would have incurred as a result.  In the opinion of the Board, it is clear that the applicant elected to decline the promotion to MSG/E-8 so that he could proceed with his retirement as scheduled and not incur the 2 year service obligation.  

4.  Lacking evidence to the contrary, the Board presumes government regularity in the applicant’s promotion and retirement processing and it finds an insufficient evidentiary basis to grant the requested relief.  

5.  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).  

6.  Although the applicant did not specifically request advancement on the Retired List, the Board determined that since he is currently on the Retired List and requested to be promoted, this carried with it an implied request for advancement, which necessitated consideration.

7.  Because the applicant never 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.  

8.  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.

9.  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

__JNS__  __BJE___  __JED___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067164	
SUFFIX		
RECON		
DATE BOARDED	2002/02/14	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/10/31	
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.